                                                                                           06/09/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs February 4, 2020

             MARVIN T. DICKERSON v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                     No. 12-05649       Paula L. Skahan, Judge
                      ___________________________________

                           No. W2019-00840-CCA-R3-PC
                       ___________________________________

The Petitioner, Marvin T. Dickerson, appeals the denial of his petition for post-conviction
relief, arguing that he received ineffective assistance of counsel in various matters related
to his sentencing. After review, we affirm the denial of the petition.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J. and CAMILLE R. MCMULLEN, J., joined.

Joshua N. Corman, Memphis, Tennessee, for the appellant, Marvin T. Dickerson.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                          FACTS

       The Petitioner and a co-defendant where indicted and convicted of especially
aggravated robbery, attempted second-degree murder, two counts of attempted
aggravated robbery, aggravated assault, and employment of a firearm during the
commission of a dangerous felony. This court affirmed the judgments with regard to the
Petitioner on direct appeal. State v. Antonio Henderson and Marvin Dickerson, No.
W2015-00151-CCA-R3-CD, 2016 WL 3390627, at *1 (Tenn. Crim. App. June 10, 2016),
perm. app. granted (Tenn. Oct. 24, 2016). The Tennessee Supreme Court denied the
Petitioner’s application for permission to appeal but granted his co-defendant’s
application.
       The Petitioner filed a timely petition for post-conviction relief as well as an
amended petition through appointed counsel. The Petitioner alleged, relevant to this
appeal, that he received ineffective assistance of counsel in various matters with regard to
his sentencing.

        The post-conviction court conducted an evidentiary hearing, at which trial counsel
testified that he represented the Petitioner at trial and was also responsible for filing the
motion for new trial. He recalled that no evidence was presented by the State at the
Petitioner’s sentencing hearing, only arguments were made, and that he did not receive
any kind of notice regarding the Petitioner’s juvenile history prior to the sentencing
hearing. Trial counsel could not provide any reason that he did not object to the State’s
argument about the Petitioner’s juvenile history or prior criminal convictions. He
remembered the prosecutor “making comments as to [the Petitioner’s having] a long-term
criminal history,” and he conceded that, to his knowledge, “someone’s juvenile history is
not something that is an appropriate enhancement factor for the . . . prior convictions as
an enhancement factor[.]”

        Appellate counsel testified that she represented the Petitioner on his direct appeal.
Appellate counsel recalled that the only enhancement factor the trial court applied in
determining the Petitioner’s sentence was for prior criminal behavior. She acknowledged
that she did not raise as an issue on appeal that it was improper for the trial court to
consider the Petitioner’s juvenile record as prior convictions. She explained that she did
not raise that issue because she “didn’t feel like it was a viable issue on appeal . . .
[b]ased on [her] research in . . . case law.” She said that her understanding of the law was
that “[a] prior juvenile record can be used as an enhancement factor, still within the
range.” Asked about State v. Jackson, 60 S.W.3d 738 (Tenn. 2001), appellate counsel
stated that she was familiar with the case and “I don’t know why . . . [but] I did not feel
that it was on point with this case. But I didn’t feel that there is anything that had gone
on in the sentencing hearing, that raised a legal issue.” Likewise, appellate counsel did
not think that the trial court’s failure to merge the attempted second-degree murder and
especially aggravated robbery convictions was a viable issue to raise on appeal.

                                        ANALYSIS

        The Petitioner argues that he received ineffective assistance of counsel in various
matters related to his sentencing. He asserts that trial counsel failed to object to the use
of his juvenile criminal history as a consideration at sentencing or raise as an issue in the
motion for new trial that the State failed to prove that he had a history of criminal
convictions or behavior. He also asserts that trial counsel failed to raise as an issue in the
motion for new trial that the trial court erred in failing to merge his convictions for
especially aggravated robbery and attempted second-degree murder in violation of the
                                            -2-
principles of double jeopardy and due process. He further argues that appellate counsel
rendered ineffective assistance for failing to raise these issues on appeal.

       Post-conviction relief “shall be granted when the conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103. The
petitioner bears the burden of proving factual allegations by clear and convincing
evidence. Id. § 40-30-110(f). When an evidentiary hearing is held in the post-conviction
setting, the findings of fact made by the court are conclusive on appeal unless the
evidence preponderates against them. See Wiley v. State, 183 S.W.3d 317, 325 (Tenn.
2006). When reviewing factual issues, the appellate court will not reweigh the evidence
and will instead defer to the post-conviction court’s findings as to the credibility of
witnesses or the weight of their testimony. Id. However, review of a post-conviction
court’s application of the law to the facts of the case is de novo, with no presumption of
correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective
assistance of counsel, which presents mixed questions of fact and law, is reviewed de
novo, with a presumption of correctness given only to the post-conviction court’s
findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6
S.W.3d 453, 461 (Tenn. 1999).

       To establish a claim of ineffective assistance of counsel, the petitioner has the
burden to show both that trial counsel’s performance was deficient and that counsel’s
deficient performance prejudiced the outcome of the proceeding. Strickland v.
Washington, 466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn.
Crim. App. 1997) (noting that the same standard for determining ineffective assistance of
counsel that is applied in federal cases also applies in Tennessee). The Strickland
standard is a two-prong test:

      First, the defendant must show that counsel’s performance was deficient.
      This requires showing that counsel made errors so serious that counsel was
      not functioning as the “counsel” guaranteed the defendant by the Sixth
      Amendment. Second, the defendant must show that the deficient
      performance prejudiced the defense. This requires showing that counsel’s
      errors were so serious as to deprive the defendant of a fair trial, a trial
      whose result is reliable.

466 U.S. at 687.

       The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
                                          -3-
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
Moreover, the reviewing court must indulge a strong presumption that the conduct of
counsel falls within the range of reasonable professional assistance, see Strickland, 466
U.S. at 690, and may not second-guess the tactical and strategic choices made by trial
counsel unless those choices were uninformed because of inadequate preparation. See
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The prejudice prong of the test is
satisfied by showing a reasonable probability, i.e., a “probability sufficient to undermine
confidence in the outcome,” that “but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694.

       Courts need not approach the Strickland test in a specific order or even “address
both components of the inquiry if the defendant makes an insufficient showing on one.”
466 U.S. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either
deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.”).

                                      Juvenile History

        The Petitioner first argues that trial counsel was ineffective for failing to object to
the trial court’s consideration of his juvenile criminal history as an enhancement factor at
sentencing or raise as an issue in his motion for new trial that the State failed to prove by
a preponderance of the evidence that he had a history of criminal convictions or behavior.
He also argues that appellate counsel was ineffective for failing to raise this issue on
appeal.

        Relying on Jackson, 60 S.W.3d 738, the Petitioner asserts that “[a] defendant’s
juvenile record cannot be used to prove a previous history of criminal convictions or
behavior under the enhancement factor – history of criminal convictions or behavior.” In
Jackson, the defendant was convicted of aggravated robbery and sentenced to the
maximum term for a Range I offender convicted of a Class B felony. 60 S.W.3d at 739.
One of the enhancement factors used by the trial court to enhance the defendant’s
sentence was that the defendant had a previous history of unwillingness to comply with
the conditions of a sentence involving release in the community, Tennessee Code
Annotated section 40-35-114(8). Id. at 739-40. On direct appeal, this court additionally
determined that the defendant was adjudicated to have committed a delinquent act as a
juvenile that would constitute a felony if committed by an adult, Tenn. Code Ann. section
40-35-114(20). Id. at 740. On review to our supreme court, the defendant argued that a
juvenile criminal record could only be considered under factor (20) and that the trial
court, therefore, improperly applied factor (8) to his juvenile probation violations. Id. In
considering the issue, our supreme court explained as follows:

                                             -4-
              In 1995, the legislature amended Tennessee Code Annotated section
      40-35-114 by adding enhancement factor (20), which allows for
      enhancement of a sentence if “[t]he defendant was adjudicated to have
      committed a delinquent act or acts as a juvenile that would constitute a
      felony if committed by an adult.” Tenn. Code Ann. § 40-35-114(20). Prior
      to this amendment, a defendant’s juvenile record was considered a
      sufficient basis for sentence enhancement under section 40-35-114(1),
      which provides that “[t]he defendant has a previous history of criminal
      convictions or criminal behavior in addition to those necessary to establish
      the appropriate range.”

             After the 1995 amendment went into effect, several panels of the
      Court of Criminal Appeals recognized that if factor (1) was to continue
      being interpreted to allow consideration of juvenile records, such
      interpretation would render factor (20) without any significant effect.
      Consequently, various panels attempted to reconcile the two factors and
      have since held that these two factors apply to mutually exclusive instances
      of conduct: factor (1) applies only to adult criminal conduct, and factor (20)
      applies exclusively to juvenile adjudications. In addition, several panels
      have gone further to hold that factor (20) provides the exclusive means for
      allowing a court to consider any part of a juvenile record.

              We agree that factors (1) and (20) are mutually exclusive. If not so
      construed, the broad interpretation given to factor (1) would render factor
      (20) “inoperative, superfluous, void, or insignificant.” Because the
      legislature is not presumed to have passed or enacted useless legislation,
      factor (1) must necessarily apply only to adult criminal conduct, and factor
      (20) must apply exclusively to juvenile adjudications of delinquent acts.

             Moreover, we also agree with the lower court that the plain language
      of factor (20) restricts a court’s consideration of a defendant’s “adjudicated
      delinquent acts” to only those delinquent acts that would constitute felonies
      if committed by an adult. However, the plain language of factor (20) is
      limited to those offenses that represent “delinquent acts,” and a court may
      consider other offenses under separate enhancement factors.

Jackson, 60 S.W.3d at 741-42 (internal case citations omitted). Later, the court
concluded that “we hold today that section 40-35-114(20) is not the exclusive
means for using juvenile court records to enhance sentences in subsequent adult
criminal proceedings.” Id. at 743.

                                          -5-
       The Petitioner’s presentence report is not included in the record on appeal.1
However, at the Petitioner’s sentencing hearing, the State referred to the presentence
report and noted that the Petitioner

          had his first contact with the juvenile system at age eight and it just
          continued there, ’04, ’06, ’06, [’]06, ’08, ’09. His last juvenile offense
          being a theft over a thousand April 2009. The very next year, eighteen,
          possession of marijuana, 2010. Aggravated criminal trespass age eighteen,
          criminal trespass age eighteen, criminal trespass age eighteen, criminal
          trespass age eighteen, drug charge age nineteen, drug charge age nineteen,
          counterfeit controlled substance age nineteen, marijuana possession age
          nineteen, criminal trespass age nineteen, marijuana possession age nineteen.

                 I mean one, two, three, four, five, six, seven, eight, nine, ten, eleven,
          twelve, thirteen contacts with the justice system as an adult before he picks
          this up.

          Later in the sentencing hearing, the trial court recounted:

                 But he also was in trouble as a juvenile. He’s had extensive contact
          with the criminal justice system including before his mother died. Before
          his mother passed in June of 2000 he was . . . brought into contact with the
          juvenile system with criminal trespass and malicious mischief. He was
          warned and counseled. . . .

                 His next contact with the juvenile system was 2004 misdemeanor
          assault was warned and counseled. . . . [H]e had contact in 2004 with
          misdemeanor assault, criminal trespass in 2006 was dismissed, 2006
          aggravated burglary, evading arrest, was – Youth Service Bureau took
          control of him at that point and ten days later, November 24th, 2006,
          charged with theft of property less than 500, again, handled Youth Service
          Bureau. June 19th, 2008, he was declared dependent and neglected and
          then it says apparently turned over to a relative. . . . April 2009 charged
          with criminal trespass, warned and counseled and twenty-one days, three
          weeks later, charged with theft of property over the value of $1,000. Child
          was detained.

                 So we don’t know for what period of time but a year and [a] half
          later he was an adult and he was charged with possession of marijuana in

1
    It does not appear that the presentence report was ever entered into evidence at the sentencing hearing.
                                                     -6-
       the adult court, convicted and then we start with many contacts with the
       adult system eventually leading up to this violent, violent attack on three
       individuals resulting in Shabaka Reed being shot four times and transported
       in critical condition.

        Thereafter, in discussing mitigating and enhancing factors, the trial court found
that the Petitioner had a previous history of criminal convictions and criminal behavior.

      On post-conviction, in ruling on the juvenile history issue, the post-
conviction court found:

       [T]here were several other references to [the] Petitioner[’]s criminal history
       during the sentencing hearing that were separate from the juvenile offenses.
       . . . These offenses would be sufficient to establish sentence enhancement. .
       . . Additionally, there were other enhancement factors that were triggered
       during the sentencing hearing. . . . For example, when the State was
       discussing [the] Petitioner’s juvenile history, the State addresses the last
       offense that [the] Petitioner committed before becoming [an] adult. The
       offense was theft of property over $1,000. This is an offense that, if
       committed by an adult, would be a felony and thus could be relevant under
       sentence enhancement factor (16).

              Lastly, class A felony charges begin at the midpoint of the
       sentencing range before enhancement or mitigating factors are considered.
       The sentence for especially aggravated robbery carries fifteen to twenty-
       five years for [a] range one offender[; thus,] a sentence of twenty-one years
       at 100% is appropriate in light of the enhancing and mitigating factors
       discussed on the record.

       We need not belabor whether the trial court properly considered the Petitioner’s
juvenile record and if so, under which enhancement factor(s), because, as noted by the
post-conviction court, “there were several other references to [the] Petitioner[’]s criminal
history during the sentencing hearing that were separate from the juvenile offenses. . . .
These offenses would be sufficient to establish sentence enhancement. . . .” The
transcript of the sentencing hearing reflects the Petitioner’s criminal behavior after
becoming an adult, and the sentence imposed by the trial court does not “wholly” depart
from the Sentencing Act. See State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012).
Therefore, we cannot conclude that the Petitioner was prejudiced by any alleged
deficiency in trial counsel’s failure to challenge the use of his juvenile record or in
appellate counsel’s failure to raise the issue on appeal.

                                           -7-
                                               Merger

       The Petitioner next argues that trial counsel was ineffective for not raising as an
issue in his motion for new trial that the trial court erred in failing to merge his
convictions for especially aggravated robbery and attempted second-degree murder in
violation of the principles of double jeopardy and due process.2 He also argues that
appellate counsel was ineffective for failing to raise the issue on appeal.

       With regard to the merger issue, the post-conviction court noted that “[t]his is an
issue that was settled in a similar case” by this court. The post-conviction court
recounted that, in Theron Davis v. State, No. W2010-01607-CCA-R3-PC, 2011 WL
6323016, at *11 (Tenn. Crim. App. Dec. 16, 2011), perm. app. denied (Tenn. Apr. 19,
2012), this court decided that the offenses of attempted second-degree murder and
especially aggravated robbery

        do not merge under the Blockburger test because “[u]nquesitonably, neither
        robbery nor the use of a deadly weapon is necessarily proven by proving
        the elements needed for first degree or second degree murder. Conversely
        an intentional or knowing killing of another is not necessarily proven by
        proving the elements of especially aggravated robbery.” The offenses are
        not necessarily incidental of one another, and thus, under Blockburger, a
        defendant may be convicted of both without a violation of double jeopardy.

               For these reasons, neither [trial counsel]’s failure to object to this
        issue in his motion for new trial nor [appellate counsel]’s failure to raise the
        issue on appeal constitutes a failure to provide effective assistance of
        counsel.

       The Petitioner does not dispute the post-conviction court’s Blockburger analysis.
He simply asserts that the case relied on by the post-conviction court, Theron Davis, 2011
WL 6323016, is distinguishable because, in his case, “the evidence of one felony
necessarily proved the elements of the second felony.” In support of his contention, the
Petitioner relies on the Tennessee Supreme Court’s determination in his co-defendant’s
discretionary appeal that “[b]ecause the [co-d]efendant’s conduct demonstrated that he
had not completed his intended theft at the time Mr. Reed suffered his serious bodily
injury, we hold that Mr. Reed suffered his serious bodily injury during the commission of



2
  The Petitioner mentions due process only in his heading and conclusory sentence, and then his entire
argument and legal authority focuses solely on double jeopardy. Therefore, we will constrain our analysis
to double jeopardy.
                                                  -8-
the robbery with a deadly weapon.” State v. Henderson, 531 S.W.3d 687, 698 (Tenn.
2017).

       The prohibition against double jeopardy protects criminal defendants from
“multiple punishments for the same offense.” State v. Watkins, 362 S.W.3d 530, 541
(Tenn. 2012). “[A] single wrongful act may not furnish the basis for more than one
criminal prosecution[,]” but “[i]f each offense charged requires proof of a fact not
required in proving the other, the offenses are not multiplicitous.” State v. Phillips, 924
S.W.2d 662, 665 (Tenn. 1996). In Tennessee, the test outlined in Blockburger v. United
States, 284 U.S. 299, 304 (1932), is used to determine whether multiple convictions
under different statutes violate the state constitutional double jeopardy prohibition against
multiple punishment. Watkins, 362 S.W.3d at 556. The threshold inquiry in Blockburger
is whether the convictions arise from the same act or transaction. Id. If this inquiry is
answered in the negative, then double jeopardy is not implicated. Id. at 557. However, if
the same act or transaction gives rise to multiple convictions, the court must determine
whether the crimes constitute the same offense. Id. When the statutory definition of each
offense includes an element not included in the other offense, then the offenses are
distinct and double jeopardy is not implicated. Id.

        In this case, the Petitioner’s convictions for especially aggravated robbery and
attempted second-degree murder certainly arose out of the same act or transaction.
However, looking at the elements of the offenses, they each contain elements the other
does not. Especially aggravated robbery is the knowing or intentional theft of property
from the person of another, accomplished with a deadly weapon and resulting in serious
bodily injury to the victim. See Tenn. Code Ann. § 39-13-401, -403. Second-degree
murder is “[a] knowing killing of another[,]” id. § 39-13-210(a), and criminal attempt
occurs when the defendant “[a]cts with intent to complete a course of action or cause a
result that would constitute the offense, under the circumstances surrounding the conduct
as the person believes them to be, and the conduct constitutes a substantial step toward
the commission of the offense.” Id. § 39-12-101(a)(3). In sum, especially aggravated
robbery must involve a theft, be accomplished with a deadly weapon, and result in
serious bodily injury to the victim; whereas, second-degree murder involves the intent to
kill someone. Accordingly, the separate convictions for especially aggravated robbery
and attempted second-degree murder do not violate principles of double jeopardy, and
trial counsel’s failure to seek merger or appellate counsel’s failure to argue such as error
on appeal does not constitute deficient performance.

                                     CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the denial of the
Petitioner’s petition for post-conviction relief.
                                            -9-
  ____________________________________
  ALAN E. GLENN, JUDGE




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