        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned On Briefs August 2, 2011

                  KENNETH FORD v. STATE OF TENNESSEE

                    Appeal from the Circuit Court for Madison County
                         No. C-10-72    Donald H. Allen, Judge



                 No. W2010-01835-CCA-R3-PC - Filed February 24, 2012


A Madison County Jury convicted Petitioner of three counts of aggravated assault and one
count of reckless endangerment resulting from an altercation Petitioner had with his live-in
girlfriend and her three daughters. State v. Kenneth Ford, No. W2007-02149-CCA-R3-CD,
2009 WL 1034522, at *1-3 (Tenn. Crim. App., at Jackson, Apr. 17, 2009). The trial court
sentenced Petitioner to an effective sentence of twenty-two years. Id. at *3. Petitioner was
unsuccessful in his direct appeal of his sentence to this Court. Id. at *1. Petitioner filed a
timely petition for post-conviction relief arguing that he was afforded the ineffective
assistance of counsel. The post-conviction court held a hearing and denied the petition.
Petitioner now appeals the denial of his petition. After a thorough review of the record, we
determine that the evidence does not preponderate against the post-conviction court’s
findings. In addition, several issues raised by Petitioner were not raised in front of the post-
conviction court. In addition they were not raised during direct appeal but could have been
and are now waived; or were addressed on direct appeal. Therefore, we affirm the denial of
the petition.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which R OBERT W. W EDEMEYER and
C AMILLE R. M CM ULLEN, JJ., joined.

Kenneth Ford, Pro Se, Whiteville, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney
General; Jerry Woodall, District Attorney General; and Al Earls, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                         OPINION

                                    Factual Background

       Carolyn Hopson and Petitioner both moved from Chicago, Illinois to Jackson,
Tennessee. Id. at *1, *3. They lived together with her three daughters, Brittany, Brionna,
and Bernice Butler. Id. at *1. One evening, Ms. Hopson was waiting for Petitioner to return
with the car so that she could go to her job at the Circle K convenience store. When he
arrived home, he was intoxicated. Ms. Hopson demanded that Petitioner leave the house.
Id. An altercation ensued during which Petitioner retrieved a knife from the kitchen and
began to jab the knife at Ms. Hopson, cutting her several times. Id. Ms. Hopson’s daughters
heard the altercation and attempted to intervene. Petitioner cut Brionna while she was trying
to help her mother. Id. *2.

       Ms. Hopson was able to locate a telephone which appeared to have been hidden in a
cabinet. Officers arrived and took pictures of Ms. Hopson’s injuries. Id. at *3. She did not
go to the hospital for her injuries, and she went to work that evening. Id. at *1.

       Betty McNulty is the manager of the Circle K convenience store where Ms. Hopson
worked. Id. at *2. Ms. McNulty testified that a man called the Circle K convenience store
several times asking for Ms. Hopson. Id. at *3. When Ms. McNulty told the man to stop
calling the store, he threatened her. Id.

       As a result of the altercation and the telephone calls to the store, the Madison County
Grand Jury indicted Petitioner for one count of attempted first degree murder of Ms. Hopson,
one count of aggravated assault of Ms. Hopson, one count of aggravated assault of Brittany
Butler, one count of aggravated assault of Brionna Butler, one count of aggravated assault
of Bernice Butler, and one count of harassment of Ms. McNulty. Id. at *1. A jury convicted
Petitioner of one count each of aggravated assault on Ms. Hopson, Brittany and Brionna, and
one count of reckless endangerment of Bernice. Id. at *3. The jury found Petitioner not
guilty of harassment of Ms. McNulty. The charge for attempted first degree murder was
dismissed by the State when the jury could not reach a verdict. Id. The trial court sentenced
Petitioner to an effective sentence of twenty-two years. Id.

       On appeal to this Court, Petitioner argued that the trial court erred in imposing
consecutive sentences. After a review of the record, we determined that there was no error
and affirmed the judgments of the trial court. Id. at *4.




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        On March 11, 2011, Petitioner filed a pro se petition for post-conviction relief.
Counsel was appointed. The post-conviction court held an evidentiary hearing on August 2,
2010. Petitioner testified at the hearing. He stated that he believed trial counsel was
ineffective for several reasons. His initial complaint is that trial counsel did not seek
information that he was actually the lien holder of the vehicle he was driving on the night of
the incident. He wanted trial counsel to impeach Ms. Hopson’s testimony because at trial she
claimed that the vehicle belonged to her. Petitioner also stated that trial counsel made a point
at trial that the knife used in the attack was never found, but trial counsel did not do any
investigation regarding the knife. Petitioner also thought that trial counsel should have
questioned Ms. Hopson’s daughter as to whether he was a good step-father. Petitioner also
complained that trial counsel did not locate and interview two witnesses, Camilla Lockett and
Ivy Lockett. Petitioner stated that he gave trial counsel their names and contact information
before trial.

       Petitioner also testified that his trial counsel came to see him four times, but he only
spoke with Petitioner for about five minutes each time. Petitioner admitted that trial counsel
informed him of the State’s plea offer, but Petitioner told trial counsel he wanted to go to
trial.

        Petitioner based several of his assertions of ineffectiveness on the victims’ injuires
and the proof presented at trial. Petitioner argued that trial counsel was ineffective because
Petitioner was not shown photographs of the victims’ injuries before trial. The photographs
were introduced at trial. Trial counsel told Petitioner that he had seen the photographs, and
the injuries consisted only of scratches. Petitioner was also displeased that trial counsel did
not get the medical records of the victims. However, on cross-examination he admitted that
there were no medical records. Petitioner also believed that trial counsel should have gotten
an expert witness to testify about the victims’ injuries to rebut the State’s proof.

       Petitioner asserts that trial counsel was also ineffective in regard to sentencing.
Petitioner states that he was not given an opportunity to object to the presentence report that
was admitted at the sentencing hearing. Petitioner also asserts that a jury should have
sentenced him instead of the trial judge. Petitioner specifically asserted that trial counsel was
ineffective because he did not put on any mitigating evidence or call any witnesses at the
sentencing hearing.

       Trial counsel also testified at the post-conviction evidentiary hearing. Trial counsel
works for the Public Defender and was appointed. Trial counsel met with Petitioner seven
times in jail and also saw him for a few minutes every time they were in court. He filed a
motion for discovery and a motion to sever some counts that stemmed from incidents



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occurring on different days.     Trial counsel did obtain a psychological evaluation for
Petitioner.

       Trial counsel testified about the evidence presented at trial. He stated that he never
knew that the title of the vehicle was an issue. Trial counsel stated that he did not consider
ownership of the vehicle relevant to whether Petitioner was guilty of the assault. With regard
to the photographs of the victims’ injuries, trial counsel stated that he did see the
photographs. He was unsure as to whether Petitioner saw them. Trial counsel stated that the
photographs were consistent with what Ms. Hopson testified regarding her injuries. Trial
counsel testified that he subpoened medical records for the victims, but he never received
anything. He assumed that there were no records since Ms. Hopson did not go for treatment.
Trial counsel also stated that he did not present the knife because the investigator said that
the knife was never found. Trial counsel also stated that he attmpted to show that Petitioner
cared for Ms. Hopson’s daughters as if they were his own. Trial counsel testified that there
was a hung jury with regard to the attempted murder charge.

       Trial counsel also testified regarding the sentencing hearing. He stated that Petitioner
told him of two witnesses before the sentencing hearing. Trial counsel did not think they
would be very good witnesses because they were the victims. Petitioner also told him of a
Mr. Lockett and gave trial counsel the contact information. Trial counsel attempted to call
him and did not receive an answer. Trial counsel left a message, but he never received a call
back. There was a second telephone number for Mr. Lockett that was disconnected. Trial
counsel also tried to have Petitioner’s mother testify at the sentencing hearing, but he was not
able to reach her. Trial counsel also stated that Petitioner never said anything to him
regarding his belief that the jury should have sentenced him.

      On August 23, 2010, the post-conviction court filed an order denying the petition.
The post-conviction court made the following findings:


       1.     That the Petitioner failed to prove the factual allegations in his Petition
              by clear and convincing evidence.
       2.     That the Petitioner failed to establish that [trial counsel]’s performance
              at trial was deficient or that his performance and representation in some
              way prejudiced the defense.
       3.     That the Court credits the testimony of [trial counsel] when he testified:
              a.       That he met with the Petitioner at least seven times prior to the
                       trial,
              b.       That he performed full discovery and investigation of the State’s
                       file,

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              c.      That he had numerous discussions with the Petitioner in
                      preparation for the jury trial in this matter, and
              d.      That the Petitioner never provided any names of any witnesses
                      that could possibly testify for the defense,
       4.     That [trial counsel] was not ineffective by failing to produce medical
              records of Carolyn Hopson as alleged by the Petitioner since Ms.
              Hopson never sought medical attention for her injuries, which consisted
              of cuts or wounds to her face, upper lip, chin, side, arm, and breast area,
       5.     That the Petitioner has failed to prove that the outcome of his trial
              would have been different if he had been shown photographs of the
              victim’s injuries since the Court recalls that [trial counsel] had an
              opportunity to view the photographs, which were part of the State’s file,
              with the Petitioner prior to their admission, and the Court further
              finding that there was no proper basis for the defendant to object to the
              photographs being admitted into evidence.
       [6.]   That the Petitioner has failed to show a deficient performance by [trial
              counsel], or that any prejudice resulted to the defendant based upon
              [trial counsel]’s conduct,
       [7.]   That [trial counsel]’s conduct and performance at the trial, and prior to
              trial, was within the wide range of reasonable professional assistance,
              and
       [8.]   That [trial counsel] made reasonable and legitimate decisions based
              upon the factual circumstances presented at the trial about how best to
              represent the Petitioner in his defense.


       Petitioner filed a timely notice of appeal.

                                        ANALYSIS

       On appeal, Petitioner argues that the post-conviction court erred in denying his
petition. The post-conviction court’s findings of fact are conclusive on appeal unless the
evidence preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).
During our review of the issue raised, we will afford those findings of fact the weight of a
jury verdict, and this Court is bound by the court’s findings unless the evidence in the record
preponderates against those findings. See Henley v. State, 960 S.W.2d 572, 578 (Tenn.
1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997). This Court may not
reweigh or reevaluate the evidence, nor substitute its inferences for those drawn by the
post-conviction court. See State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn. 2001). However,



                                              -5-
the post-conviction court's conclusions of law are reviewed under a purely de novo standard
with no presumption of correctness. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

        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 trial
counsel were deficient and (b) that the deficient performance was prejudicial. See 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 services rendered or the advice given was
below “the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn. 1975). 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 v. Washington, 466 U.S.
668, 694 (1984). “Because a petitioner must establish both prongs of the test to prevail on
a claim of ineffective assistance of counsel, failure to prove either deficient performance or
resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley, 960
S.W.2d at 580.

       As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record
preponderates against the court’s findings. See id. at 578. However, our supreme court has
“determined that issues of deficient performance by counsel and possible prejudice to the
defense are mixed questions of law and fact . . . ; thus, [appellate] review of [these issues]
is de novo” with no presumption of correctness. Burns, 6 S.W.3d at 461.

        Furthermore, on claims of ineffective assistance of counsel, the petitioner is not
entitled to the benefit of hindsight. See Adkins, 911 S.W.2d at 347. This Court may not
second-guess a reasonably based trial strategy, and we cannot grant relief based on a sound,
but unsuccessful, tactical decision made during the course of the proceedings. See id.
However, such deference to the tactical decisions of counsel applies only if counsel makes
those decisions after adequate preparation for the case. See Cooper v. State, 847 S.W.2d 521,
528 (Tenn. Crim. App. 1992).

      The Petitioner argues that trial counsel was ineffective in failing to spend adequate
time with him preparing for trial and failing to question Ms. Hopson’s daughters as to
whether he was a good step-father. The post-conviction court found that trial counsel was
more credible than the Petitioner at the hearing. Trial counsel specifically stated that he met
with Petitioner seven times and talked with him at various hearings. Moreover, at trial,
counsel questioned the girls about Petitioner treating them as if they were his own. We find
no evidence to preponderate against the post-conviction court’s findings. Therefore, we



                                              -6-
conclude that Petitioner has not proven that trial counsel was deficient with regard to these
issues.

        Concerning the allegations that trial counsel should have presented evidence that
Petitioner was the actual owner of the car; should have shown Petitioner the photographs of
the victims’ injuries; and should have gotten the victims’ medical records, we conclude that
trial counsel was not deficient in his representation with regard to these issues. The
ownership of the vehicle was not relevant to Petitioner’s guilt of the crimes for which he was
charged. With regard to the photographs, trial counsel viewed them and considered them
consistent with Ms. Hopson’s testimony. Petitioner seeing the photographs would not have
changed their admissibility. As for the medical records, Petitioner has not shown that there
were medical records in existence. Therefore, he cannot show that trial counsel was
ineffective in not obtaining non-existent medical records.

         Petitioner also argues that trial counsel was deficient because he did not present
Camilla Lockett and Ivy Lockett as witnesses. However, Petitioner did not present these
witnesses at the hearing. A petitioner must present witnesses at the post-conviction hearing
to prevail on a claim of deficient representation for failing to call a witness at trial. Black v.
State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). A post-conviction court may not
speculate, “on the question of . . . what a witness’s testimony might have been if introduced
at trial.” Id. In the case at hand, Petitioner did not present the witnesses he claims that trial
counsel should have called at trial. Therefore he cannot prove either that trial counsel was
deficient or that he was prejudiced by trial counsel’s failure to present the witnesses in
question.

       On appeal, Petitioner asserts that trial counsel should have objected to a witness who
mentioned Petitioner’s prison record during the trial. Petitioner did not present this issue
during the hearing in the lower court. When a petitioner raises an issue for the first time on
appeal, that issue is waived. See Black v. Blount, 938 S.W.2d 394, 403 (Tenn. 1996). In
addition, a petitioner may not change theories between the lower court and the appellate
court. State v. Alder, 71 S.W.3d 299, 303 (Tenn. Crim. App. 2001). Because Petitioner did
not allege this issue in his post-conviction petition or raise it during the hearing, the
post-conviction court did not address this issue in its order. Therefore, this issue is waived.

       Petitioner also argues that the evidence was insufficient at trial to support his
conviction, the post-conviction court erred in affirming the trial court’s guilty verdict when
the indictment was defective, and the “post-conviction court erred in denying relief from the
affirmation of the trial courts violation of Confrontation Clause” because the trial court
allowed the introduction of photographs of the victims’ injuries, Petitioner was a not given
an expert witness to testify about serious bodily injury, and the prosecution repeatedly

                                               -7-
introduced perjured testimony. Initially, we point out that the post-conviction court has not
affirmed the actions of the trial court. The Court of Criminal Appeals and the Tennessee
Supreme Court are the courts that are able to affirm decisions made by a trial court.
Therefore, we assume that Petitioner is asking this Court in this appeal to review decisions
made by the trial court at trial.

        These issues are waived because they were not presented on direct appeal. “A ground
for relief is waived if the petitioner personally or through an attorney failed to present it for
determination in any proceeding before a court of competent jurisdiction in which the ground
could have been presented,” with certain exceptions not applicable in the present case.
T.C.A. § 40–30–106(g). The opportunity to raise the issue during a direct appeal of the
conviction, coupled with a failure to pursue that appeal or a failure to raise the issue during
that appeal, constitutes a waiver of the issue pursuant to Code section 40–30–206(g) for
purposes of a post-conviction relief proceeding. State v. Benson, 973 S.W.2d 202, 208
(Tenn. 1998); Alley v. State, 958 S.W.2d 138, 148 (Tenn. Crim. App. 1997).

       Finally, Petitioner argues that the post-conviction court erred in affirming his
sentence. Once again, we will assume Petitioner is attempting to attack his sentence. As
stated above, this issue is one that is properly presented on direct appeal. Petitioner’s
sentence was reviewed on appeal. Therefore, this issue has been previously determined.
T.C.A. § 40-30-106(h). Moreover, under the “law of the case” doctrine, issues which have
been previously determined on appeal cannot be reconsidered. Memphis Publ’g. Co. v.
Tennessee Petroleum, 975 S.W.2d 303, 306 (Tenn. 1998). “This rule promotes the finality
and efficiency of the judicial process, avoids indefinite relitigation of the same issue, fosters
consistent results in the same litigation, and assures the obedience of lower courts to the
decisions of appellate courts. Ladd [ v. Honda Motor Co., Ltd.], 939 S.W.2d [83,] 90 [Tenn.
Ct. App. 1996) ].” Memphis Publ’g. Co., 975 S.W.2d at 306.

       Therefore, these issues are without merit.

                                       CONCLUSION

       We affirm the post-conviction court’s denial of the petition for post-conviction relief.




                                            ___________________________________
                                            JERRY L. SMITH, JUDGE




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