                                                                                          10/17/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs May 7, 2019

         YOGONDA ABDULA CORLEY v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                  No. 2010-C-2743 Cheryl A. Blackburn, Judge
                     ___________________________________

                           No. M2018-01568-CCA-R3-PC
                       ___________________________________


Petitioner, Yogonda Abdula Corley, appeals from the post-conviction court’s denial of
his petition for post-conviction relief. Petitioner contends that his trial counsel provided
ineffective assistance by failing to develop a record at trial that was adequate for
appellate review. Having reviewed the record and the briefs of the parties, we affirm the
denial of post-conviction relief.

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

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

Jay Umerley, Nashville, Tennessee, for the appellant, Yogonda Abdula Corley.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior
Assistant Attorney General; Glenn R. Funk, District Attorney General; and Tammy
Meade, Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

Procedural history

       Petitioner was charged with three counts of aggravated sexual battery and three
counts of rape of a child against the victim T.S., and he was charged with two counts of
aggravated sexual battery and four counts of rape of a child against the victim M.M.
State v. Yogonda Abdula Corley, No. M2013-00464-CCA-R3-CD, 2014 WL 12653830
(Tenn. Crim. App. Feb. 26, 2014), perm. app. denied (Tenn. Aug. 26, 2014). Following a
jury trial, Petitioner was convicted of six counts of rape of a child, four counts of
aggravated sexual battery, and one count of attempted aggravated sexual battery. Id.
Following a sentencing hearing, Petitioner was ordered to serve a total effective sentence
of 75 years’ incarceration. Id.

       The proof presented at trial was summarized by a panel of this court on direct
appeal. Id. The two victims, T.S. and M.M., are cousins. They were both 12 years old at
the time of trial. Both victims testified about several instances of sexual abuse and rape
by Petitioner.

        On direct appeal, Petitioner asserted multiple claims of plain error. Petitioner
argued on appeal that it was plain error for the trial court: 1) to admit into evidence a
recording and transcript of statements by Petitioner obtained by the use of a body wire
worn by the mother of one of the victims; 2) to admit into evidence Petitioner’s
statements to the police following his arrest; 3) to admit into evidence the opinion
testimony by a nurse practitioner that the victims’ statements were consistent with their
medical examinations; and 4) not to sever the offenses against the two victims. A panel
of this court determined that plain error was not justified for any of those claims. Id.

       Petitioner subsequently sought post-conviction relief, alleging that he was denied
the effective assistance of counsel at trial.

Post-conviction hearing

       Petitioner testified that he believed trial counsel was ineffective for failing to file a
motion to suppress his statements made during a wiretapped conversation with T.S.’s
mother. Petitioner testified that during the conversation, T.S.’s mother “was getting
madder and madder” and that he “was scared.” He testified that she was physically and
verbally threatening towards him, and “she’d get closer and closer to [his] face, you
know, hollering and yelling at [him].” He testified that he repeatedly denied her
allegations and that his ultimate admission was coerced. Petitioner later learned that the
conversation was recorded at the direction of the police.

        On cross-examination, Petitioner acknowledged that they were outside of his
home when the conversation happened, and that he was not under arrest. He
acknowledged that T.S.’s mother did not hit him or threaten him with a weapon. He
testified that he did not give her an opportunity to hit him because when she approached
him, he would “walk off.”

       Petitioner testified that he believed trial counsel was ineffective for failing to
object to the State’s leading questions to M.M. He testified that during the State’s direct
examination, M.M. “would say no to the question,” and the prosecutor would ask the
question again another way.
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        Petitioner testified that he believed trial counsel was ineffective for failing to
object to the opinion testimony of Sue Ross, a nurse practitioner who testified as an
expert for the State, regarding the inconclusive medical examination. Petitioner also
testified that trial counsel also should have objected to the testimony of a State’s witness
who was an expert in children’s memory.                   On cross-examination, Petitioner
acknowledged that Ms. Ross was qualified by the trial court to testify as an expert
witness, but Petitioner testified, “she didn’t give no [sic] qualifications.”

       Finally, Petitioner complained that trial counsel should have filed a motion to
sever the offenses against each victim. He testified that the offenses happened “at two
different times, and [the State] put both of them together.”

       Petitioner’s trial counsel testified that she did not file a motion to suppress
Petitioner’s statement to T.S.’s mother because Petitioner “never made any admissions to
penetration” during the conversation. Additionally, trial counsel testified that Petitioner
“had given [her] so many different inconsistent statements” about the conversation with
T.S.’s mother. Trial counsel testified that Petitioner told her that he “was high on drugs,”
and on another occasion, he told her that he had not taken any drugs prior to his
conversation with T.S.’s mother. She also testified that Petitioner was inconsistent about
whether he was in fear of T.S.’s mother. Trial counsel testified that it was a tactical
decision not to seek suppression of the statement.

        Regarding the testimony of the victims, trial counsel testified that she “did not feel
that repetitive objections were going to serve any purpose, due to the fact that [they] were
children.” Regarding State’s witness Sue Ross, trial counsel testified she “was qualified
as an expert and, certainly, her opinions would not have been objectionable.” Trial
counsel testified that it had been six years since Petitioner’s trial, and she had not
reviewed the trial transcripts. She testified, “I think I asked [Ms. Ross] questions in and
around any statements and opinions that she gave in order to benefit [Petitioner]’s
position at trial.” Trial counsel testified that Ms. Ross’ testimony as to the victims
“having gaps in memories and having inconsistent memories was actually beneficial to
[Petitioner].”

       Trial counsel explained that she did not file a motion to sever the offenses because
her defense strategy was to show that both victims fabricated the allegations against
Petitioner because one of the victims was mad at Petitioner. Trial counsel also testified
that she believed that the offenses were not severable because they were part of “a
common scheme or plan and have similar character and conduct.”



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        In a written order denying post-conviction relief, the post-conviction court
accredited trial counsel’s testimony and concluded that Petitioner had not shown by clear
and convincing evidence that trial counsel was ineffective or that trial counsel’s alleged
deficiencies prejudiced Petitioner. Regarding trial counsel’s failure to file a motion to
suppress Petitioner’s statement, the post-conviction court found that Petitioner failed to
demonstrate that such a motion would have been granted and that there was a reasonable
probability that the proceedings would have concluded differently if trial counsel had
filed a motion to suppress. See Vaughn v. State, 202 S.W.3d 106, 120 (Tenn. 2006)
(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). The post-conviction court
found that trial counsel was unable to establish that Petitioner was coerced by T.S.’s
mother because Petitioner had made several inconsistent statements about his
conversation with T.S.’s mother. Regarding trial counsel’s alleged failure to object to
leading questions by the State of the victim M.M., the post-conviction court found that
Petitioner had not “identified any specific instances during M.M.’s testi[mony] that
warranted an objection.” The post-conviction court further found that trial counsel made
a reasonably based strategic decision not to make a standing objection. Regarding trial
counsel’s alleged failure to object to the opinion testimony of Sue Ross, the post-
conviction court found that Ms. Ross was qualified by the trial court as an expert and that
her opinion testimony fell within her qualified expertise. Regarding trial counsel’s
failure to file a motion to sever the offenses, the post-conviction court found “trial
counsel’s testimony credible and that trial counsel made a reasonable strategic decision
based on thorough investigation.” The post-conviction court further found that Petitioner
had not demonstrated any legal basis to sever the offenses.

Analysis

        On appeal, Petitioner argues that trial counsel was ineffective because her failure
“to file the motions and objections that [Petitioner] raised on direct appeal and in the
[post-conviction] petition” prevented appellate review of the issues. The State responds
that the post-conviction court properly denied Petitioner’s petition for post-conviction
relief.

       When a petitioner raises an ineffective assistance of counsel claim, this court is
obligated to review that claim according to certain well-settled principles. Both the Sixth
Amendment to the Constitution of the United States and Article I, section 9 of the
Tennessee Constitution guarantee the right of an accused to the effective assistance of
counsel. See Davidson v. State, 453 S.W.3d 386, 392-93 (Tenn. 2014). In order to
sustain a claim of ineffective assistance of counsel, a petitioner must prove both that
counsel’s performance was deficient and that the deficiency prejudiced the defense. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). Because a petitioner must establish
both elements in order to prevail on a claim of ineffective assistance of counsel, “failure
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to prove either deficient performance or resulting prejudice provides a sufficient basis to
deny relief on the claim.” Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997). “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 v. State, 938
S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S. at 697).

       The test for deficient performance is whether counsel’s acts or omissions fell
below an objective standard of reasonableness under prevailing professional norms.
Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. This court must evaluate the
questionable conduct from the attorney’s perspective at the time, Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and “should indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance,” State v.
Burns, 6 S.W.3d 453, 462 (Tenn. 1999); see also Strickland, 466 U.S. at 690 (“[C]ounsel
is strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.”). This court will not use
hindsight to second-guess a reasonable trial strategy, even if a different procedure or
strategy might have produced a different result. See Adkins v. State, 911 S.W.2d 334,
347 (Tenn. Crim. App. 1994); Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim.
App. 1980). However, this deference to the tactical decisions of trial counsel is
dependent upon a showing that the decisions were made after adequate preparation.
Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

       In order to determine prejudice, the question is “whether counsel’s deficient
performance renders the result of the trial unreliable or the proceeding fundamentally
unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). A petitioner must show that
there is a reasonable probability “sufficient to undermine confidence in the outcome”
that, “but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Burns, 6 S.W.3d at 463 (quoting Strickland, 466 U.S. at 694). “An error
by counsel, even if professionally unreasonable, does not warrant setting aside the
judgment of a criminal proceeding if the error had no effect on the judgment.” Id.
(quoting Strickland, 466 U.S. at 691).

        Petitioner complains that trial counsel failed to raise timely objections and
preserve the same for appellate review. Under this general allegation, Petitioner refers to
three specific allegations. Petitioner asserts that trial counsel’s performance was deficient
for failing to file a motion to suppress Petitioner’s wiretapped conversation with T.S.’s
mother; failing to object to opinion testimony by expert witness Sue Ross; and failing to
file a motion to sever the offenses.

     The post-conviction court issued extensive findings of fact and conclusions of law.
The post-conviction court expressly accredited the testimony of trial counsel and
                                            -5-
concluded that trial counsel’s reasoning and strategy was reasonable. Petitioner requests
that the post-conviction court’s denial of relief “be overturned so at a minimum
[Petitioner] can return to the trial court to file the appropriate motions with sufficient
representation.”

        Regarding trial counsel’s failure to file a motion to suppress Petitioner’s recorded
statement to T.S.’s mother, a panel of this court summarized the proof at trial and
concluded that the record was inadequate to conduct a plain error review of the issue.
Corley, 2014 WL 12653830, at *3-4. The panel noted, “[w]hile the record before us
contains testimony of T.S.’s mother and Detective Fitzgerald, as well as the content of
the recorded conversation, we cannot conclude that the recording should have been
suppressed without a more developed record.” Id. at *4. The panel also noted that it was
not clear from the record whether trial counsel waived objection to the evidence for
tactical reasons, pointing to the State’s argument on appeal that “trial counsel knew that
the victims would testify that [Petitioner] had sexually penetrated them, and in recorded
conversation with T.S.’s mother, [Petitioner] repeatedly denied having penetrated the
victims and only admitted having touched the victims.” Id.

       As the State points out in its brief, Petitioner had ample opportunity to more fully
develop the record at the post-conviction hearing. The only additional proof presented
was Petitioner’s testimony that he felt threatened by T.S.’s mother. The post-conviction
court, however, accredited trial counsel’s testimony that it was a strategic decision not to
challenge admission of the statement. The evidence does not preponderate against the
post-conviction court’s finding. Petitioner is not entitled to relief on this issue.

        The panel also summarized on direct appeal the testimony of nurse practitioner
Sue Ross that the lack of physical injury to M.M. was not inconsistent with M.M.’s
description of the sexual abuse. Id. at *5. The panel noted that Ms. Ross was qualified
by the trial court to testify as an expert for the State. At trial, Ms. Ross “acknowledged
that given the physical findings, she could not give an expert opinion as to whether
‘penetration did or did not happen.’” Id. Applying a plain error analysis, the panel held,
“we cannot conclude that consideration of this issue is necessary to do substantial justice,
that it was not a tactical decision by defense counsel not to object to the testimony, or that
a substantial right of [Petitioner] ha[d] been adversely affected.” Id.

        Again, Petitioner failed to present any proof at the post-conviction hearing that
there was any basis on which to object to Ms. Ross’s testimony, or that an objection by
trial counsel would have been sustained by the trial court. Furthermore, the post-
conviction court accredited trial counsel’s testimony that Ms. Ross was qualified by the
trial court as an expert and that her opinion testimony fell within her qualified expertise.

                                            -6-
The evidence does not preponderate against the post-conviction court’s finding.
Petitioner is not entitled to relief on this issue.

        Regarding trial counsel’s failure to file a motion to sever the offenses, the panel on
direct appeal agreed with the State’s assertion that Petitioner’s argument was not that
consolidation was error but that trial counsel was ineffective for failing to object to
consolidation or to move for severance of the offenses. Id. at 6. The panel concluded
that “the record [wa]s entirely undeveloped on this issue” and noted that trial counsel’s
failure to object could have been a tactical decision, pointing to attempts by trial counsel
“to undermine the credibility of both victims and to establish that the victims, M.M. in
particular, did not like [Petitioner] and had a motive to fabricate the allegations.” Id.
Trial counsel, in fact, testified at the post-conviction hearing that she did not file a motion
to sever the offenses because her defense strategy was to show that both victims
fabricated the allegations against Petitioner because one of the victims was mad at
Petitioner. The post-conviction court accredited trial counsel’s testimony and concluded
that it was a reasonably based strategic decision. The evidence does not preponderate
against the post-conviction court’s finding. Petitioner is not entitled to relief on this
issue.

                                      CONCLUSION

       After reviewing the record and the briefs of the parties, we affirm the judgment of
the post-conviction court.

                                    ____________________________________________
                                    THOMAS T. WOODALL, JUDGE




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