        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                      AT NASHVILLE
                         Assigned On Briefs February 12, 2014

     LEONARD ALLEN, a.k.a. Lenny Allen v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Davidson County
                         No. 2003-A-42 Seth Norman, Judge




                  No. M2013-00840-CCA-R3-PC - Filed July 21, 2014


On January 3, 2003 the Davidson County Grand Jury indicted Petitioner, Leonard Allen, for
especially aggravated robbery. Following a jury trial, Petitioner was convicted of the charged
offense. The trial court sentenced Petitioner to twenty years of incarceration. Petitioner filed
a notice of appeal. Subsequently, Petitioner filed a petition to plead guilty to aggravated
robbery in the same case. The trial court, upon agreement of the parties, vacated the
conviction for especially aggravated robbery and accepted a plea agreement to aggravated
robbery with a sentence of ten years at thirty percent with credit for time served and the
balance of the sentence to be served on probation. Petitioner appealed, challenging various
aspects of his original conviction as well as the guilty plea. See State v. Leonard Allen, No.
M2007-02581-CCA-R3-CD, 2011 WL 1344462 (Tenn. Crim. App. at Nashville, April 5,
2011), perm. app. denied, (Tenn. July 14, 2011). On direct appeal, this Court invalidated the
plea agreement, finding, among other things, that the trial court lacked jurisdiction to enter
the plea agreement where Petitioner had already filed a notice of appeal. This Court then
reinstated Petitioner’s conviction for especially aggravated robbery. On remand, the trial
court reinstated the accompanying twenty-year sentence. Subsequently, Petitioner sought
post-conviction relief in which he argued, inter alia, that he received ineffective assistance
of counsel at trial. Following a hearing, the post-conviction court entered an order denying
Petitioner relief. On appeal, Petitioner argues that the post-conviction court erred in
dismissing his Petition for Post-Conviction Relief based on ineffective assistance of his trial
counsel. After a thorough review of the record, we affirm the judgment of the post-
conviction court denying the petition for relief.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which R OBERT W. W EDEMEYER and
J EFFREY S. B IVINS, JJ., joined.
Jason Chaffin, Nashville, Tennessee for the petitioner, Leonard Allen.

Robert E. Cooper, Jr., Attorney General and Reporter; Cailtin E.D. Smith, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Dan Hamm, Assistant District
Attorney General, for the appellee, State of Tennessee.




                                         OPINION

                                    Factual Background

       On January 3, 2003, Petitioner was indicted by the Davidson County Grand Jury for
especially aggravated robbery for incidents that took place at a Dollar General on Antioch
Pike in Nashville on December 9, 2001. After a jury trial, Petitioner was found guilty of
especially aggravated robbery, a Class A felony. See T.C.A. § 39-13-403. Petitioner was
sentenced to twenty years at one hundred percent on March 15, 2006.

        Petitioner filed a pro se “Petition for Post-Conviction Relief And/Or New Trial” on
June 20, 2006, claiming that he received ineffective assistance of counsel. On August 7,
2006, Petitioner, through newly appointed counsel, filed a motion requesting permission to
late-file a motion for new trial, and the motion was granted on September 15, 2006.

        Petitioner properly filed a motion for new trial September 21, 2006. He argued that
the trial court erred by failing to grant his motion for judgment of acquittal, after the close
of the State’s proof because the evidence was insufficient to support the conviction.
Specifically, he argued that his identity was not established by the proof. Petitioner filed an
amended motion for new trial, contending that he received ineffective assistance of trial
counsel.

       The trial court held a hearing on the motion. The trial court denied the motion by
order on October 24, 2007. The order refused to address Petitioner’s ineffective assistance
counsel claims in order to preserve those claims for a later time. The trial court found that
Petitioner’s identity was sufficiently established by the victim’s testimony, which the jury
accredited. On November 7, 2007, Petitioner filed a notice of appeal to this Court.

       On January 22, 2008, for reasons that are not entirely clear from the record on appeal,
Petitioner filed a petition to plead guilty to aggravated robbery in exchange for a sentence of




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ten years at thirty percent.1 That same day, the trial court set aside Petitioner’s conviction for
especially aggravated robbery and entered an amended judgment. The amended judgment
reflected Petitioner’s guilty plea to aggravated robbery and a sentence of ten years at thirty
percent. Petitioner was to receive credit for time served and serve the balance of the sentence
on probation. The judgment form indicated that both Petitioner and the State agreed to the
plea and sentence. Additionally, the judgment form vacated the conviction for especially
aggravated robbery.

        Petitioner appealed, arguing that his plea agreement was invalid because it was
entered when he had a pending notice of appeal, that the trial court committed plain error by
admitting a photograph array into evidence at trial, and that the evidence was insufficient to
support the conviction. The facts leading up to the indictment and resulting conviction
established that the manager of the Dollar General, Bernadette Woodbury, was working at
the store on Antioch Pike in Nashville on the evening of December 9, 2001. Leonard Allen,
2011 WL 1344462, at *1. As she emptied a money drawer and carried the money to the safe,
she was approached by an African-American man dressed in camouflage wearing dark
rimmed glasses. He was holding a handgun, pushed and hit Ms. Woodbury, and threatened
her life. She lost consciousness. When she awoke, the perpetrator was gone, along with over
$700. She was unable to identify Petitioner in a photographic array at the hospital but
identified clothing similar to the clothing worn by the perpetrator.

       Several months later, Ms. Woodbury was at work and heard a familiar voice. Id. at
*2. She identified the voice as that of the perpetrator and gave police a description of the car
the man was driving. Shortly thereafter, Ms. Woodbury was shown a new photographic array
in which she identified Petitioner.

        When Petitioner’s home was searched, police located a camouflage jacket,
camouflage pants, and a pair of black-framed glasses. During his testimony at trial,
Petitioner admitted to going to the Dollar General on occasion and admitted that he owned
the clothing but denied wearing it to the store. Id. at *3. Petitioner denied owning a handgun
or cellular phone. Petitioner also denied having a criminal history. On cross-examination,
he admitted to several prior convictions.

        On direct appeal, this Court determined the trial court did not have proper authority
to permit the plea agreement entered on January 22, 2008, because Petitioner had already
filed a notice of appeal from his conviction for especially aggravated robbery. This Court


1
 This plea agreement pertained to the events for which Petitioner had already been convicted of
especially aggravated robbery.


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relied on State v. Green, which held, “In a criminal case, when a notice of appeal is filed, the
jurisdiction of the Criminal Appeals attaches, and the trial court loses jurisdiction . . . Any
judgments made outside the court’s jurisdiction are void.” 106 S.W.3d 646, 648-49 (Tenn.
2003) (citing State v. Pendergrass, 937 S.W.2d 834, 837 (Tenn. 1996); State v. Peale, 58
S.W.3d 701, 704 (Tenn. 2001)). As a result of the trial court’s lack of jurisdiction, this Court
affirmed Petitioner’s original conviction for especially aggravated robbery and reinstated the
twenty-year sentence.

        In addition, this Court determined that the photographic array introduced at trial was
unduly suggestive but that Petitioner was not entitled to plain error relief because
“consideration of the error [was not] necessary to do substantial justice.” Id. at *7.
Specifically, the court found that the victim’s facial and voice recognition of Petitioner, the
fact that camouflage clothing and black rimmed glasses were found in his apartment, and the
lack of credibility of Petitioner’s own testimony provided ample evidence independent of the
photographic identification such that its admission probably did not change the outcome of
the trial. Id. Consequently, this Court also determined that the evidence was sufficient to
support the conviction for especially aggravated robbery. Id. at *8.

         After the supreme court denied permission to appeal, Petitioner timely filed a pro se
“Petition for Post-Conviction Relief And/Or a New Trial.” Counsel was appointed and
Petitioner filed an “Amended Petition for Post-Conviction Relief.” The petition raised
various claims of ineffective assistance of counsel, including: (1) trial counsel’s failure to
communicate with Petitioner, or provide Petitioner with the State’s discovery; (2) trial
counsel’s failure to properly investigate, or hire an investigator, and his failure to pursue
witnesses; (3) trial counsel’s failure to prepare Petitioner for trial; (4) trial counsel’s failure
to file a motion to suppress or otherwise object to the introduction of the photographic lineup
identification; (5) trial counsel’s failure to make him aware of plea offers; and (6) trial
counsel’s substandard guidance advising Petitioner not to accept the State’s final plea offer.

        The post-conviction court held an evidentiary hearing on the petition. Petitioner
testified at the hearing that he retained trial counsel to represent him after being charged with
especially aggravated robbery. Petitioner further testified that his case was pending for three-
and-one-half years and that he made twenty-three courtroom appearances prior to trial, but
that trial counsel only met with him twice outside of the courtroom to discuss the case.
During this time, Petitioner swore trial counsel neither discussed the amount of time
Petitioner would face if he were convicted, nor communicated the potential sentences for
lesser-included offenses to Petitioner’s charged crime. Finally, Petitioner testified that,
during this period, trial counsel never provided Petitioner with documents pertinent to his




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defense or copies of the evidence the State would later attempt to employ in obtaining
Petitioner’s conviction.

       Additionally, Petitioner testified that trial counsel never discussed the possibility of
obtaining an investigator to interview potential witnesses. Trial counsel testified that he did
not seek to hire an investigator, nor have one appointed, because there were no other
witnesses to the robbery other than the identifying victim. He did not speak with the other
employees because, per the victim’s account, they did not see anything happen. Trial counsel
then explained that the theory of his case was that the victim had misidentified Petitioner
because of her mental state. Trial counsel chose not to offer witnesses that would discredit
the victim’s account.

        Petitioner also testified that, prior to trial, he made trial counsel aware of two potential
alibi witnesses. The first witness was Petitioner’s supervisor, who, according to Petitioner,
would verify that he went to work the night of the robbery. The second witness was
Petitioner’s girlfriend, who would apparently testify that she saw Petitioner the night of the
robbery. Trial counsel testified that he did not pursue the witnesses suggested by Petitioner
because he was not convinced they could provide a complete alibi. Specifically, he recalled
that “the timing when [Petitioner] was at work and the window of opportunity was such that
whether he was at work or not that night wasn’t going to necessarily exonerate him.”

        Petitioner also argued that trial counsel failed to adequately prepare him for trial.
Petitioner testified that, prior to their last day of trial, counsel never prepared Petitioner to
take the stand, and trial counsel did not convey the potential perils that Petitioner could be
subjected to by taking the stand in his own defense. During his trial testimony, Petitioner
made the statement that he and his siblings, “never had any [legal] problems worse than a
speeding ticket.” As a result of Petitioner’s claim, approximately nine prior arrests were
submitted into evidence by the State for impeachment purposes. Trial counsel did not object
to prior convictions being entered into evidence because Petitioner had “opened the door”
to the proper admission of that evidence. Petitioner claimed that trial counsel’s inability to
prepare him for testimony permitted the prosecution to offer Petitioner’s criminal record into
evidence to impeach his character.

       Trial counsel did admit that, had Petitioner not “opened the door” to allow his prior
convictions to be entered into evidence, the trial “could have gone a different way.”
However, trial counsel testified that he told Petitioner on several occasions how to prevent
his prior convictions from being admitted. Trial counsel stated that he and Petitioner
evaluated the testimony that Petitioner would give at trial, and that he clearly described that,
unless Petitioner “opened the door,” his prior convictions could not be mentioned to impeach



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his testimony. Trial counsel recalled that he and Petitioner spoke on this issue for at least
twenty minutes.

       Petitioner also argued that trial counsel failed to file a motion to suppress the
photographic lineup identification. The lineup contained six African-American males around
the age that the victim identified. However, Petitioner was the only one of the six that was
dressed in camouflage and black glasses, which were very similar to what the victim stated
the assailant was wearing. Leonard Allen, 2011 WL 1344462, at *6. Trial counsel testified
that he did not object or file any motions to prohibit the photographic lineup identification,
because he did not recognize any problems with the lineup.

       Lastly, Petitioner alleged that trial counsel did not adequately inform him of the
State’s plea offers. On the day of trial, trial counsel informed Petitioner of a plea offer that
included a three-year sentence. However, Petitioner insisted that he declined the State’s offer
based on trial counsel’s advice “that [Petitioner] should not plead guilty to a charge if he did
not commit the offense.” Petitioner testified that counsel never make him aware of any other
plea offers. Trial counsel stated that he reviewed plea offers with Petitioner, but Petitioner
chose not to accept them.

       The post-conviction court denied relief, finding that Petitioner had failed to prove by
clear and convincing evidence that he had received ineffective assistance of counsel.
Petitioner filed a timely notice of appeal.

                                           Analysis

       Both the federal and state constitutions require that a defendant in a criminal case
receive effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668 (1984);
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); Hicks v. State, 983 S.W.2d 240, 245
(Tenn. Crim. App. 1998). When a petitioner seeks post-conviction relief on the basis of
ineffective assistance of counsel, the petitioner bears the burden of showing that (a) the
services rendered by the trial counsel were deficient and (b) that the deficient performance
was prejudicial. See Strickland, 466 U.S. at 694; Powers v. State, 942 S.W.2d 551, 558
(Tenn. Crim. App. 1996). In order to demonstrate deficient performance, the petitioner must
show that the attorney’s performance was below “the range of competence demanded of
attorneys in criminal cases.” Baxter, 523 S.W.2d 930, 936. In order to demonstrate
prejudice, the petitioner must show that there is a reasonable probability that, but for
counsel’s deficient performance, the result of the proceeding would have been different. See
Strickland, 466 U.S. at 694. “Because a petitioner must establish both prongs of the test to
prevail on a claim of ineffective counsel, failure to prove either deficient performance or



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resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley v. State,
960 S.W.2d 572, 579 (Tenn. 1997). Therefore, “[i]f either element of ineffective assistance
of counsel has not been established, a court need not address the other element.” Howell v.
State, 185 S.W.3d 319, 326 (Tenn. 2006).

        The post-conviction court’s findings of fact are conclusive on appeal unless the
evidence in the record preponderates against those findings. See Henley v. State, 960 S.W.2d
572, 578 (Tenn. 1997); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). Questions
concerning the credibility of the witness, the weight and value given to their testimony, and
the factual issues raised by the evidence are to be resolved by the post-conviction court and
should not be re-evaluated by the appellate court. Henley, 960 S.W.2d at 580. However,
“[r]eview of a trial court’s application of the law to the facts of a particular case is de novo,
with no presumption of correctness.” Burns, 6 S.W.3d at 461. Cases involving mixed
questions of law and fact, such as “deficient performance by counsel and possible prejudice
to the defense,” are also reviewed under the de novo standard. Id.

        We determine that Petitioner has failed to demonstrate that trial counsel was deficient
in failing to discuss discovery, review evidence, prepare him to take the stand in his own
defense, or inform him of the potential lesser-included offenses of which he could be
convicted. Trial counsel testified at the evidentiary hearing that he adequately discussed the
aforementioned issues with Petitioner prior to trial and that they met frequently to discuss the
case. The post-conviction court accredited the trial counsel’s testimony rather than
Petitioner’s, as trial counsel was “a well-respected attorney of high moral character.”
Additionally, the post-conviction court concluded that Petitioner’s lack of candor on the
witness stand damaged his credibility. The credibility and weight of witness testimony are
to be resolved by the post-conviction court. See Henley, 960 S.W.2d at 580. We determine
that Petitioner has failed to present evidence that preponderates against the findings of the
post-conviction court. Petitioner is not entitled to relief on this issue.

         Petitioner argues on appeal that trial counsel was deficient because he failed to
properly investigate or subpoena potential witnesses. It is well-settled that a post-conviction
petitioner making a claim regarding the failure to call a witness bears a duty to present the
witness at the post-conviction hearing in order to enable this Court to determine whether his
or her testimony might have altered the results of the trial. See Black v. State, 794 S.W.2d
753, 757 (Tenn. Crim. App. 1990). Because Petitioner failed to produce such witnesses at
the hearing, he is not entitled to relief based on a claim that the failure to call such witnesses
at trial amounted to ineffective assistance of counsel.




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          Similarly, Petitioner has failed to show that trial counsel was deficient in preparing
Petitioner to testify on his own behalf by warning him that his prior criminal history could
be used as impeachment. “If witnesses make sweeping claim[s] of good conduct on direct
examination, they may open the door to cross-examination . . . as rebuttal of the broad claim
. . . to show untruthfulness.” See Tenn. R. Evid. 608, Advisory Comm. Cmts.; see also State
v. Miller, 647 S.W.2d 279, 284 (Tenn. 1984). Petitioner certainly made “a sweeping claim
of good conduct” by his own testimony that he had no criminal history, which “opened the
door” to properly allow the prosecution to question Petitioner about his former convictions.
Counsel attempted to rehabilitate Petitioner’s credibility, nevertheless Petitioner continued
to maintain falsely that he did not have a criminal history. Additionally, the post-conviction
court accredited the testimony of trial counsel that he and Petitioner had several discussions
regarding Petitioner’s testimony and that he warned Petitioner that his prior convictions could
be used for impeachment if Petitioner “opened the door.” Petitioner has failed to present
evidence that preponderates against this finding.

       Next, Petitioner insists that trial counsel should have filed a motion to suppress the
photographic lineup identification of Petitioner. Petitioner argues that because he was the
only suspect in the photo wearing camouflage and black glasses similar to the clothing
described by the victim, the photograph was unduly suggestive. On direct appeal, this Court
noted that in order to grant relief on the photo array issue, “the ‘plain error’ must be of such
great magnitude that it probably changed the outcome of the trial.” Leonard Allen, 2011 WL
1344462 at *7 (quoting State v. Adkisson, 889 S.W.2d 626, 642 (Tenn. Crim. App. 1994)).
We noted that the victim identified Petitioner as her assailant through recognition of his voice
and the clothing in his apartment. In other words, the direct evidence of the voice
recognition, together with the circumstantial evidence of the clothing found matching the
victim’s description provided sufficient proof for the guilty verdict despite the erroneous
admission of the suggestive photo array. Therefore, even if trial counsel’s performance was
deficient in this regard, this Court has already found that any failure to challenge the
photographic array would not have changed the result of the trial. Thus, Petitioner has failed
to established any prejudice with respect to this issue.

        Finally, Petitioner suggests that trial counsel’s failure to make him aware of proposed
plea bargains and advice on refusing the State’s last plea agreement were sufficient grounds
for a finding of ineffective assistance of counsel. Petitioner has not presented any evidence,
other than his own testimony. The post-conviction court determined Petitioner lacked the
credibility and candor to support his testimony, in part due to his own conflicting statements.
This Court concludes that Petitioner has failed to prove by clear and convincing evidence that
counsel’s performance was deficient or prejudicial. Therefore he is not entitled to relief.
Petitioner has failed to meet his burden of establishing that counsel’s performance was



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deficient or that the outcome of the proceedings were prejudiced by counsel’s alleged failure
to communicate plea offers to Petitioner.

                                        Conclusion
       For the foregoing reasons, the judgment of the post-conviction court is affirmed.




                                                         _________________________
                                                         JERRY L. SMITH, JUDGE




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