                                                                                         09/16/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs May 15, 2019

            JOHN BURLEY ALBERTS v. STATE OF TENNESSEE

                Appeal from the Circuit Court for Williamson County
                    No. CR170296 Joseph A. Woodruff, Judge


                            No. M2018-00994-CCA-R3-PC


The Petitioner, John Burley Alberts, appeals the Williamson County Circuit Court’s
denial of his petition for post-conviction relief from his convictions for four counts of
rape of a child, for which he is serving an effective 100-year sentence. He contends that
the post-conviction court erred in denying his ineffective assistance of counsel claim. We
affirm the judgment of the post-conviction court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and CAMILLE R. MCMULLEN, JJ., joined.

Elizabeth A. Russell, Franklin, Tennessee, for the Appellant, John Burley Alberts.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Kim R. Helper, District Attorney General; Mary Katherine White,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

        The Petitioner’s convictions relate to his sexual abuse of an eight-year-old child.
He was charged with additional offenses related to other victims, but those counts were
severed from the present case. After allegations of sexual misconduct surfaced, law
enforcement officers determined that the Defendant, who had a prior conviction for a
sexual offense, was in violation of the sex offender registry. The Defendant was arrested.
After his arrest, investigators reviewed images on computers to which the Defendant had
access. One such computer, a laptop, had been recovered from the trunk of the
Defendant’s car. The images on this computer provided a significant portion of the
evidence which led to the convictions in the present case. See State v. John Burley
Alberts, No. M2015-00248-CCA-R3-CD, 2016 WL 349913 (Tenn. Crim. App. Jan. 28,
2016), perm. app. denied (Tenn. June 23, 2016).

       The authorities obtained a warrant to search the car. The defense filed a motion to
suppress the search of the car based upon insufficiency of the search warrant affidavit and
sought suppression of the evidence obtained from the search of the computer as “fruit of
the poisonous tree.”

      This court has previously summarized the evidence related to the discovery of the
Defendant’s offenses:

              Detective Tameka Sanders testified that she was employed by the
       Williamson County Sheriff’s Office (“WCSO”) and that she was the lead
       detective on the Defendant’s case. Det. Sanders began investigating the
       Defendant after several parents reported that the Defendant had sexually
       abused their children. According to Det. Sanders, the abuse was reported
       on January 19, 2007. Det. Sanders “pulled [the Defendant’s] records” and
       learned that he had been previously convicted of sexual abuse of a minor
       female.

              Det. Grant Benedict, also with the WCSO, testified that he
       “handle[d]” registered sex offenders in the county. After learning about the
       Defendant’s prior record from Det. Sanders, Det. Benedict searched the
       county’s sex offender registry for the Defendant’s name and discovered that
       the Defendant had been living in Williamson County without registering as
       required. Accordingly, on January 31, 2007, Det. Benedict arrested the
       Defendant for violating the sex offender registry. While attempting to
       locate the Defendant prior to his arrest, Det. Benedict called one of the
       Defendant’s former employers, who informed Det. Benedict that the
       Defendant had spent a lot of time on one of the computers at work.

              Timothy Pratt testified that he and the Defendant “grew up together”
       and that in 2007, he was living on Sweet Gum Lane in Lawrence County.
       He testified that the Defendant sometimes “stayed” at the house next door
       to his, which Mr. Pratt also owned. He recalled that the Defendant’s car
       was “setting [sic] in [his] driveway when [he] came home one night.”
       More specifically, the Defendant’s car was located “in between” the
       driveway of the house where the Defendant had been staying and the
       driveway of Mr. Pratt’s home. According to Mr. Pratt, the Defendant had
       already been arrested at that point, and he was not sure how the car came to
       be parked there. Mr. Pratt was aware of the Defendant’s arrest because the
       Defendant was working for Mr. Pratt’s brother at the time, and the

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Defendant was arrested at a “job site.” Mr. Pratt opined that someone from
the construction company moved the Defendant’s car following his arrest.
The car was unlocked, but the keys were with the car. Mr. Pratt locked the
car and put the keys in his work truck.

       Det. Sanders learned that the Defendant had recently lived in the
home of A.B. and D.B., two of the parents who initially reported the abuse.
Det. Sanders also learned from Det. Benedict that the Defendant “had spent
a large amount of time on the computer at his workplace.” Therefore, she
called A.B. and asked whether there was a computer in their home that the
Defendant had used. A.B. confirmed that there was a computer and that the
Defendant had used it. A.B. agreed to turn the computer over to Det.
Sanders. When Det. Sanders collected the computer, A.B. told her that the
Defendant had a laptop that he kept in the trunk of his car and that he also
owned a digital camera. Det. Sanders testified that she believed the
Defendant “was very protective of [the computer]” because “he kept it in
the trunk of his car.” According to Det. Sanders, A.B. told her about the
computer on January 25, 2007.

       Det. Sanders testified that she and Det. Benedict planned to go to the
auto dealership where the Defendant had recently worked and where he
apparently spent a lot of time on the computer. On February 6, 2007, the
detectives drove to Lawrence County, where the dealership was located,
and met with Lieutenant Denton of the Lawrence County Sheriff’s Office.
Det. Sanders explained that, because she and Det. Benedict did not have
jurisdiction in Lawrence County, she wanted to apprise local law
enforcement of the investigation as a professional courtesy. Lt. Denton
accompanied the detectives to the automobile dealership. The owner of the
dealership, Jimmie Pennington, consented to a search of the workplace
computer used by the Defendant. Det. Benedict conducted a “pre-search” of
the computer, in which all of the images contained on the computer flashed
on the screen in quick succession. Det. Benedict testified that the pre-search
revealed “a variety of images of obviously underage[ ] girls in various
states of undress and sexual positions and performing sex acts.” Det.
Sanders estimated that the pornographic images numbered in the
“[hundreds] if not thousands.” Additionally, Det. Sanders thought that she
recognized one of the victims in a picture. Mr. Pennington denied having
any knowledge of the pornographic images.

        After viewing the pictures on the workplace computer, Lt. Denton
left to get a search warrant. Mr. Pennington agreed to let the detectives
take the computer for further testing. Detectives Sanders and Benedict then

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       went to Sweet Gum Lane “to take some pictures” at the house where the
       Defendant had been staying. When they arrived, they found the
       Defendant’s car in the driveway. The detectives took pictures and
       attempted to talk to . . . Mr. Pratt, but no one was home at the time. The
       detectives left and “kind of drove around,” “went and got lunch,” and then
       went back to Sweet Gum Lane “later in the evening.” This time, there was
       a car in the Pratts’ driveway, and the detectives were able to talk to Erica
       Pratt, Mr. Pratt’s wife. Ms. Pratt told Det. Sanders that the Defendant
       “liked taking pictures of the kids” with his camera, but he would ignore her
       son “and photograph the girls only.”

               Ms. Pratt told the detectives that her husband had the keys to the
       Defendant’s car, but he was not home at the time. Approximately one hour
       later, Lt. Denton arrived with the search warrant. Det. Sanders testified that
       she never actually saw the search warrant. Also, she believed that she had
       probable cause to search the Defendant’s car without a warrant at that point
       but chose to defer to Lt. Denton and wait for a warrant because she and Det.
       Benedict were in his jurisdiction. Mr. Pratt arrived home around the same
       time that Lt. Denton arrived with the warrant, and Mr. Pratt gave the car
       keys to the officers. A laptop and digital camera were found in the trunk of
       the Defendant’s car. A subsequent analysis of the laptop revealed images
       depicting the Defendant and [the victim] engaged in various sex acts, which
       resulted in the indictments for four counts of rape of a child in this case.

Id. at *2-3.

       On February 8, 2010, the trial court filed an order granting the motion to suppress
on the basis that the search warrant failed to state sufficient probable cause, and this court
granted the State’s application for an interlocutory appeal. On June 21, 2011, this court
held that the trial court should have considered whether the search was nevertheless a
permissible warrantless search and remanded the case. State v. Alberts, 354 S.W.3d 320,
320-22, 324 (Tenn. Crim. App. 2011).

       Following remand, the trial court filed an order on June 21, 2012, which reversed
its earlier order granting the motion to suppress. The court ruled that, despite the
insufficiency of the warrant, the officers had probable cause to conduct a warrantless
search pursuant to the automobile exception to the warrant requirement. See John Burley
Alberts, 2016 WL 349913, at *4. After the Defendant was convicted at a trial in June
2013, he appealed. He challenged (1) the applicability of the automobile exception and
(2) the search of the computer. This court held that (1) the trial court properly
determined that the officers properly conducted a warrantless search pursuant to the
automobile exception and (2) the Defendant waived a challenge to the search of the

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computer because he did not challenge the search of the computer in a pretrial motion to
suppress. With regard to the latter holding, this court concluded, “An argument that
evidence from the laptop should have been suppressed as fruit of the poisonous tree is not
the same as a claim that a search warrant should have been obtained after the laptop was
seized but before a forensic analysis was conducted.” Id. at *8.

       After this court denied relief in the Petitioner’s appeal of his convictions and the
supreme court denied his application for permission to appeal, the Petitioner filed the
present post-conviction action. As relevant to this appeal, he alleged that he received the
ineffective assistance of counsel because trial counsel failed to file a motion to suppress
the evidence obtained as a result of the warrantless search of the Petitioner’s computer.

        The post-conviction court conducted a hearing, at which trial counsel testified that,
in the course of his representation of the Petitioner, they met extensively. Counsel agreed
that the Petitioner was arrested initially for a violation of the sex offender registry and
that the Petitioner was on the registry due to a prior conviction for a violent sexual crime,
for which the Petitioner had served a lengthy prison sentence.

         Relative to the present case, trial counsel testified that he filed two motions to
suppress and an amendment to one of the motions. He said he focused on the motion to
suppress which attacked the sufficiency of the affidavit for the arrest warrant. With
regard to the search of the Petitioner’s car which resulted in the seizure of the computer,
counsel said “multiple issues” existed with the warrant and affidavit. He noted that “it
was cut off from the bottom,” that the Petitioner was misidentified in the affidavit by an
unknown person’s name, that the affidavit failed to state a “nexus between criminal
activity and the object to be searched or the automobile to be searched,” and that the
warrant was issued by Lawrence County authorities for a search in Bedford County.
Counsel said, “Everyone knew what that motion to suppress was about. It was about the
images on the computer. Nothing else in that car was incriminating. It was always about
the computer, we all knew that.” Counsel explained that his understanding of the law as
it existed at the time was that the police had the authority to search a car pursuant to the
automobile exception and to search any containers inside the car which had the potential
to contain the object of the search, which included the computer and a camera that were
in the Petitioner’s trunk. Counsel said that the police had prior knowledge of the
computer and that the police had been interested in the computer, not the car, when they
searched the Petitioner’s car. Counsel said that if caselaw existed to support the position
that the computer was not a container and not subject to the automobile exception, he
would have filed another motion to suppress.

       Trial counsel testified that, at the time of the search of the Petitioner’s vehicle and
seizure of the computer, the Petitioner was subject to community supervision for life due
to his status as a sex offender. Counsel said that it was his understanding that the

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conditions of community supervision for life allowed law enforcement to conduct a
search of the Petitioner’s computer. Counsel said, though, that the rules were “always
changing” and that reference should be made to the rules at the time of the search.
Counsel said, however, that the State never argued that the search was valid because the
Petitioner was subject to community supervision for life. Counsel said the Defendant’s
charge for violating the sex offender registry was dismissed. Counsel agreed the
dismissal was based upon the original judgment being void because the judgment form
did not contain a box to check indicating community supervision for life.

       Trial counsel testified that he considered the motion to suppress to include
“[e]verything the search warrant covered.” He thought the police knew about the
Petitioner’s computer at the time they obtained the warrant and noted a neighbor had told
the police about the Petitioner’s computer.

        Trial counsel testified that the trial court initially granted the motion to suppress
after a hearing, that the State appealed, that the Court of Criminal Appeals remanded the
case for reconsideration, and that the trial court denied the motion to suppress without a
hearing following the remand. Counsel said he did not have the opportunity to address
whether he had waived a challenge to the search of the computer’s contents. Counsel
said that, in his opinion, he had preserved the issue.

       Trial counsel testified, “It’s my understanding the state of the law at that time [of
the motion to suppress] allowed them to search the computer, because it was a container.”
Counsel said that Riley v. California, 573 U.S. 373 (2014), which held that cell phones
could not be searched incident to arrest, was decided after the Petitioner’s trial and before
the motion for a new trial was heard. Counsel said he argued at the hearing on the
motion for a new trial that pursuant to Riley, the Petitioner’s computer was not a
container which could be searched pursuant to the automobile exception.

        Trial counsel testified that he did not make a tactical decision not to file a separate
motion to suppress the evidence from the search of the computer. He said that before the
Supreme Court’s Riley decision, he would not have filed a separate suppression motion
for the computer but that following Riley, he would file a separate suppression motion for
the computer.

        Trial counsel testified that, aside from the digital images of the Petitioner
committing a sex act with the victim, which were stored on the Petitioner’s computer, the
State had evidence consisting of letters written by the Petitioner and potential testimony
of the victim. Counsel said the victim did not testify at the trial, and counsel could not
recall if the victim disclosed abuse in her forensic interview. Counsel agreed that the
victim in this case and the victims in the severed counts had undergone forensic


                                             -6-
interviews and that the State did not offer as trial evidence the forensic interview for the
victim in the present case.

       Trial counsel testified that another attorney drafted the Petitioner’s brief in the
appeal of the convictions and that trial counsel represented the Petitioner at oral
argument. Counsel said he argued that the trial court erred in denying the motion to
suppress and noted that the trial court had ruled that the automobile exception applied to
the computer because it was a container. Counsel said he argued to the appellate court
that Riley and United States v. Camou, 773 F.3d 932 (9th Cir. 2014) supported
suppression of the evidence from the computer. Counsel said he argued to the appellate
court that he had not waived the issue in the trial court.

       The post-conviction court denied relief. It found that trial counsel’s performance
was not deficient because at the time of the conviction proceedings, the law provided that
the police had the authority to search a container within a vehicle if the container were
capable of concealing the object of the search. The court found that, based upon the law
as it existed at the time, counsel did not perform deficiently in failing to file a separate
motion to suppress the evidence obtained from the search of the computer. The court
found that the issue regarding the contents of the computer was addressed on the merits
by the trial court. Based upon its determination that counsel did not perform deficiently,
the post-conviction court concluded that the Petitioner’s ineffective assistance of counsel
claim must fail.

        On appeal, the Petitioner contends that the post-conviction court erred in denying
relief. Post-conviction relief is available “when the conviction or sentence is void or
voidable because of the abridgement of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103 (2012). A
petitioner has the burden of proving his factual allegations by clear and convincing
evidence. Id. § 40-30-110(f) (2012). A post-conviction court’s findings of fact are
binding on appeal, and this court must defer to them “unless the evidence in the record
preponderates against those findings.” Henley v. State, 960 S.W.2d 572, 578 (Tenn.
1997); see Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction
court’s application of law to its factual findings is subject to a de novo standard of review
without a presumption of correctness. Fields, 40 S.W.3d at 457-58.

       To establish a post-conviction claim of the ineffective assistance of counsel in
violation of the Sixth Amendment, a petitioner has the burden of proving that (1)
counsel’s performance was deficient and (2) the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell,
506 U.S. 364, 368-72 (1993). The Tennessee Supreme Court has applied the Strickland
standard to an accused’s right to counsel under article I, section 9 of the Tennessee
Constitution. See State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

                                            -7-
       A petitioner must satisfy both prongs of the Strickland test in order to prevail in an
ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). To establish the
performance prong, a petitioner must show that “the advice given, or the services
rendered . . . are [not] within the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466 U.S. at
690. The post-conviction court must determine if these acts or omissions, viewed in light
of all of the circumstances, fell “outside the wide range of professionally competent
assistance.” Strickland, 466 U.S. at 690. A petitioner “is not entitled to the benefit of
hindsight, may not second-guess a reasonably based trial strategy by his counsel, and
cannot criticize a sound, but unsuccessful, tactical decision.” Adkins v. State, 911 S.W.2d
334, 347 (Tenn. Crim. App. 1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn.
2008). This deference, however, only applies “if the choices are informed . . . based upon
adequate preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
To establish the prejudice prong, a petitioner must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.

        The question before this court is whether the trial court erred in determining that
the Petitioner failed to prove that he received the ineffective assistance of counsel based
upon trial counsel’s not having filed a separate motion to suppress the evidence obtained
from the search of the computer. As we have stated, trial counsel filed a motion to
suppress the evidence obtained from the search of the Petitioner’s car, which included the
evidence obtained from the search of the computer as “fruit of the poisonous tree.” See
Wong Sun v. United States, 371 U.S. 471 (1963). At the time the motion to suppress was
litigated and at the time of the trial, the existing law provided that the automobile
exception to the warrant requirement permitted the search of a container found inside a
car if the container was capable of concealing the object of the search. See United States
v. Ross, 456 U.S. 798 (1982); see also California v. Acevedo, 500 U.S. 565 (1991).

       The record reflects that trial counsel filed a motion to suppress which conformed
to the law as it existed at the time. After the trial, the Supreme Court decided Riley,
which provided support for an argument that the warrantless search of the computer ran
afoul of the Fourth Amendment. As a result, counsel raised the issue in the motion for a
new trial and argued that Riley applied. Counsel again raised the issue in the appeal of
the convictions. We have reviewed the motion for a new trial and the amended motion
for a new trial, which are in this court’s record of the Petitioner’s previous appeal. In
both the motion and the amended motion for a new trial, counsel stated, “The defendant
also argues that the vehicle exception to the warrant requirement does not extend to

                                            -8-
searching the Kodak camera and Dell laptop found in his automobile.” The trial court
and the appellate court concluded that the Petitioner had waived the issue by failing to
raise it before the trial, which is consistent with the Rules of Criminal Procedure. See
Tenn. R. Crim. P. 12(b)(2)(C) (stating that a motion to suppress evidence must be made
before the trial), 12(f) (stating that a party waives any defense, objection, or request by
failing to comply with rules requiring that the matter be raised before the trial); John
Burley Alberts, 2016 WL 349913, at *8.

       This court has said, “Trial counsel cannot be held to a standard of being
clairvoyant concerning a case not yet decided.” Darryl Lee Elkins and Rhonda Grills v.
State, Nos. E2005-02153-CCA-R3-PC, E2005-02242-CCA-R3-PC, 2008 WL 65329, at
*6 (Tenn. Crim. App. Jan. 7, 2008), perm. app. denied (Tenn. May 27, 2008). In Robert
Anthony Fusco v. State, No. M2016-00825-CCA-R3-PC, 2017 WL 6316621, at *8
(Tenn. Crim. App. Dec. 11, 2017), this court determined, before Riley had been decided,
that the petitioner’s trial counsel had not provided ineffective assistance by not filing a
motion to suppress incriminating cell phone data found when two cell phones were
discovered during the search of a vehicle. See also Jeffrey L. Vaughn v. State, No.
W2015-00921-CCA-R3-PC, 2016 WL 1446140, at *5 (Tenn. Crim. App. Apr. 12, 2016),
perm. app. denied (Tenn. Aug. 19, 2016). We conclude that the record supports the post-
conviction court’s determination that the Petitioner failed to prove that trial counsel’s
performance was deficient.

        The post-conviction court concluded that because the Petitioner failed to show
deficient performance, his ineffective assistance of counsel claim must fail. As we have
stated, a petitioner must establish both deficient performance and prejudice in order to
prevail on an ineffective assistance of counsel claim, the post-conviction court did not err
in denying relief. See Goade, 938 S.W.2d at 370.

       In consideration of the foregoing and the record as a whole, the judgment of the
post-conviction court is affirmed.


                                            _____________________________________
                                             ROBERT H. MONTGOMERY, JR., JUDGE




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