        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs October 19, 2016

              KEVIN LEE JOHNSON v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Marshall County
                  No. 2014-CR-14 Forest A. Durard, Jr., Judge
                     ___________________________________

                No. M2015-02273-CCA-R3-PC – Filed March 1, 2017
                     ___________________________________


The Petitioner, Kevin Lee Johnson, entered a guilty plea on April 17, 2013, for failure to
appear, a Class E felony. The Petitioner filed a post-conviction petition challenging his
conviction for failure to appear and also challenging a 2012 conviction for operating a
vehicle after having been declared a motor vehicle habitual offender (“MVHO”). The
post-conviction court dismissed both claims. On appeal, this court affirmed the dismissal
of the part of the petition related to the 2012 conviction but reversed and remanded for a
hearing on the part of the petition related to the conviction for failure to appear. See
Kevin Lee Johnson v. State (Kevin Lee Johnson I), No. M2014-01166-CCA-R3-PC, 2015
WL 2445817, at *3 (Tenn. Crim. App. May 22, 2015) no perm. app. filed. The post-
conviction court held an evidentiary hearing on the allegation that the Petitioner received
the ineffective assistance of counsel during his guilty plea to the charge of failure to
appear, and the post-conviction court denied the petition, finding neither deficiency nor
prejudice. Discerning no error, we affirm the denial of the petition.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and ROBERT W. WEDEMEYER, JJ., joined.

Christopher P. Westmoreland, Shelbyville, Tennessee, for the appellant, Kevin Lee
Johnson.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Robert J. Carter, District Attorney General; and Drew Wright, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                        OPINION

                     FACTUAL AND PROCEDURAL HISTORY

                                 Underlying Convictions

       The conviction at issue in this appeal was the result of the Petitioner‟s failure to
appear for a court date at which he was to turn himself in to begin serving his prison
sentences for four 2012 Marshall County convictions, including the MVHO conviction.

        On December 19, 2012, the Petitioner pled guilty to one count of theft of property
valued over $1,000 or more but less than $10,000, a Class D felony. See T.C.A. §§ 39-
14-103(a); 39-14-105(a)(3) (2010). The Petitioner simultaneously pled guilty to one
count of reckless endangerment with a deadly weapon, a Class E felony; one count of
resisting arrest, a Class A misdemeanor; and one count of driving after having been
declared a MVHO, a Class E felony. See T.C.A. §§ 39-13-103(b)(2); 39-16-602(a); 55-
10-616(b). The Petitioner‟s claims in the instant appeal relate in part to errors he alleges
his trial counsel committed with respect to the MVHO conviction.

        According to the prosecutor‟s recitation of the factual bases for these pleas at the
plea hearing, the theft conviction was the result of the burglary of an automotive shop on
March 20, 2012, in which two handguns and a four-wheeler were stolen. A confidential
informant told police he had purchased one of the guns from the Petitioner, and the
informant allowed police to record a call in which he negotiated with the Petitioner for
the purchase of the four-wheeler, which the Petitioner then moved to a new location to
facilitate the purchase.

       The other offenses occurred on May 13, 2012, when the Petitioner was driving a
white Crown Victoria and attempted to force a young woman to pull over on the side of
the road by flashing a white light at her in imitation of a police vehicle. The woman
called 911 and was told by the operator to keep driving. The Petitioner then passed and
blocked her vehicle, got out of his car, and told her that she was “supposed to stop for an
officer of the law.” She managed to drive away, and the Petitioner then began following
a different vehicle driving in the opposite direction. He successfully forced the driver to
stop, demanded the driver‟s license and registration, and was in the process of searching
the driver‟s trunk when police, having been alerted by the previous call to 911, arrived.
The Petitioner ran away from the scene and was not subdued until he was hit with a taser
multiple times and sprayed with a chemical.

       As part of a plea agreement, the Petitioner was given a sentence of six years for
the theft conviction, three years for the reckless endangerment conviction, eleven months
                                           -2-
and twenty-nine days for the resisting arrest conviction, and three years for the MVHO
conviction. The convictions for reckless endangerment, resisting arrest, and the MVHO
offense were to be served consecutively to one another but concurrently with the six-year
theft sentence for an effective sentence of six years, eleven months, and twenty-nine
days. As part of the agreement, one charge of burglary, an additional charge of theft, two
charges of criminal impersonation, and one charge of misdemeanor evading arrest were
dismissed.

        The trial court reluctantly permitted the Petitioner to remain on bond in order to
settle certain personal matters related to a divorce. On April 17, 2013, the Petitioner pled
guilty to felony failure to appear. See T.C.A. § 39-16-609. The Petitioner acknowledged
at the plea hearing that he had not appeared to begin service of his prior sentences. The
prosecution noted that the Petitioner, if convicted at trial, would be a career offender with
a mandatory six-year sentence and a release eligibility date after service of sixty percent
of the sentence.1 The plea agreement called for a sentence of five years with a forty-five
percent release eligibility date, to be served consecutively to the prior sentences.

      As the Petitioner notes, he was convicted of two similar offenses in Bedford
County. On March 7, 2013, the Petitioner entered open guilty pleas to driving under the

        1
         The Petitioner was sentenced to serve six years as a career offender for a March 17,
2013, conviction for felony failure to appear in Bedford County. State v. Kevin Lee Johnson
(Kevin Lee Johnson II), No. M2013-01842-CCA-R3-CD, 2014 WL 1354947, at *2 (Tenn. Crim.
App. Apr. 7, 2014). The Petitioner‟s criminal history was recited in the appeal of his Bedford
County sentences:

        The defendant had convictions for domestic assault, reckless endangerment,
        resisting arrest, a second violation of the MVHO law, and theft, in 2012 in
        Marshall County. These convictions occurred after he was charged with MVHO
        in Benton County, but before he was charged with failure to appear. As a result,
        the trial court did not consider these offense in determining the defendant‟s
        offender status for the MVHO conviction. From 2003 to 2006 the defendant was
        convicted of: a second felony for failure to appear, simple assault, resisting arrest,
        two felony convictions for forgery, resisting arrest, flight to avoid prosecution,
        two convictions for driving with a revoked license, a third felony conviction for
        failure to appear, two convictions for criminal impersonation, misdemeanor
        vandalism, felony vandalism, five misdemeanor thefts, underage consumption of
        alcohol, underage possession of alcohol, and driving under the influence. The
        defendant also violated his probation four different times.

Id. at *1.


                                                -3-
influence, to a violation of the MVHO statute, and to felony failure to appear in Bedford
County. Kevin Lee Johnson II, 2014 WL 1354947, at *1. He was sentenced to an
effective sentence of nine years and six months, and the sentences were affirmed on
appeal. Id. The Petitioner‟s references to a sentence of twenty years and six months
apparently include the sentences for these convictions.

                              Post-Conviction Proceedings

       The Petitioner filed a pro se petition for post-conviction relief on March 14, 2014.
The post-conviction court summarily dismissed the petition in its entirety for failure to
state a colorable claim. On appeal, this court affirmed the dismissal of the petition
insofar as it challenged the 2012 MVHO conviction on the grounds that the petition had
not been filed within one year of the date that the judgment, which was not appealed,
became final. Kevin Lee Johnson I, 2015 WL 2445817, at *2; see T.C.A. § 40-30-102(a).
However, this court concluded that the petition sufficiently alleged that the Petitioner‟s
guilty plea to the failure to appear charge, which was not time-barred, was involuntary
due to the ineffective assistance of counsel, and we remanded for a hearing on that issue.
Kevin Lee Johnson I, 2015 WL 2445817, at *2. The post-conviction court appointed
counsel for the Petitioner, but counsel did not amend the pro se petition.

       At the post-conviction hearing, the Petitioner testified that he met with trial
counsel twice at her office and also in the courthouse when he was scheduled to appear.
Their discussions mainly centered around the theft charge, which he maintained he did
not commit. The Petitioner stated that he did not recall trial counsel discussing the
MVHO offense with him, and he stated that he did not see the order declaring him a
habitual offender until 2013 or 2014, when he was already serving his prison sentences.

       The Petitioner asserted that his trial counsel was deficient in investigating his
MVHO offense, and he argued that this offense was the basis of the failure to appear
conviction. The Petitioner testified that he did not qualify as a habitual motor vehicle
offender because he did not have the requisite number of prior offenses when he was
declared a habitual offender in 2006. He acknowledged that he had three prior offenses
at the time the order declaring him a habitual motor vehicle offender was filed: two
offenses for driving on a revoked license in 2003 and 2004 and one for driving while
intoxicated in 2002. He argued that these offenses would not qualify him to be a habitual
offender because they were not all the same offense. See T.C.A. § 55-10-603(2)(A)(viii),
(xv) (2005) (defining a habitual offender as “any person who, during a five-year period,
is convicted in a Tennessee court or courts of three (3) or more of the following offenses”
and listing as predicate offenses driving while intoxicated and driving with a revoked
license).

                                           -4-
       The Petitioner further pointed to technical discrepancies in the agreed order
declaring him a habitual motor vehicle offender. The agreed order was filed and signed
on February 9, 2006. However, the text of the order contained a sentence which had been
altered. The sentence as typed stated the matter was heard on February 9, 2006, but the
“2006” was crossed out and replaced with a handwritten “2005,” along with a signature
labeled “Atty for Defendant.” Another order, granting a continuance in the same case,
was signed by a different judge and filed on February 9, 2005, which is the day the matter
was purportedly heard according to the agreed order. The Petitioner testified that he
believed that his case had been continued on February 9, 2005, and that he did not know
he had been declared a habitual offender on that date. He argued that the order
continuing the case and the one declaring him a habitual offender, which were both
purportedly issued on the same date, could not both be valid. He acknowledged that the
signature on the agreed order appeared to be his and that it would “appear[] on the face of
the document” that he signed it, but he maintained that he did not recall signing it and
was “not … sure that that is my signature.” We note that the State, in one of the
Petitioner‟s Bedford County cases, apparently offered as an explanation that the parties
agreed to “backdate this one year so that the [revocation] would begin in 2005 instead of
2006,” but there is nothing in the record to confirm this theory. See Kevin Lee Johnson v.
State (Kevin Lee Johnson III), No. M2014-01575-CCA-R3-PC, 2015 WL 1955678, at *4
(Tenn. Crim. App. May 1, 2015), perm. app. denied (Aug. 14, 2015).

     The Petitioner acknowledged that he was required to report to court after his
December 19, 2012 guilty pleas and that he did not do so.

        The Petitioner‟s trial counsel testified that she met with the Petitioner several
times and discussed his case with him during several telephone calls. She provided a
letter she had sent the Petitioner outlining his offenses and the range of punishment he
faced. Trial counsel testified that she had reviewed both the agreed order declaring the
Petitioner a habitual offender and the order for the continuance and that the agreed order
appeared valid to her. She testified she investigated the Petitioner‟s driving record
independently and that she consulted with the Petitioner‟s counsel in Bedford County,
and they both concluded that he had the requisite number of violations to qualify as a
habitual offender.

       Trial counsel testified that she investigated the Petitioner‟s failure to appear
charge, consulting the Petitioner to see if he had been incarcerated, ill, or otherwise
absent for a legitimate reason, and that the Petitioner “did not provide [her] with any
reasonable defense.”

      The post-conviction court denied relief, concluding that trial counsel did not
perform deficiently in failing to challenge the agreed order because the Petitioner had the
                                           -5-
requisite predicate convictions. The court also concluded that the failure to appear
conviction could not be attributed to any error in investigating the MVHO offense. The
Petitioner asserts that the post-conviction court erred in denying his petition.

                                       ANALYSIS

       The findings of fact made by a post-conviction court are conclusive on appeal
unless the evidence preponderates against them. Ward v. State, 315 S.W.3d 461, 465
(Tenn. 2010). This court may not substitute its own inferences for those drawn by the
post-conviction court, and questions concerning the credibility of witnesses, the weight
and value of the evidence, and the factual issues raised by the evidence are to be resolved
by the post-conviction court. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001).
“The appellate court‟s review of a legal issue, or of a mixed question of law or fact such
as a claim of ineffective assistance of counsel, is de novo with no presumption of
correctness.” Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006).

       A petitioner is entitled to post-conviction relief when a 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.” T.C.A. § 40-30-103. The
petitioner bears the burden of proving the allegations of fact in the petition by clear and
convincing evidence. T.C.A. § 40-30-110(f). Evidence is clear and convincing when the
correctness of the conclusions drawn from the evidence admits no serious or substantial
doubt. Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009).

        The right to counsel is guaranteed by both the Sixth Amendment to the United
States Constitution and article I, section 9 of the Tennessee Constitution. Pylant v. State,
263 S.W.3d 854, 868 (Tenn. 2008). The right to counsel encompasses “the right to
„reasonably effective‟ assistance, that is, assistance „within the range of competence
demanded of attorneys in criminal cases.‟” Id. (quoting Strickland v. Washington, 466
U.S. 668, 687 (1984)). In evaluating a claim of ineffective assistance of counsel, the
court must determine “„whether counsel‟s conduct so undermined the proper functioning
of the adversarial process that the trial cannot be relied on as having produced a just
result.‟” Vaughn, 202 S.W.3d at 116 (quoting Strickland, 466 U.S. at 686).

       To show that relief is warranted on a claim of ineffective assistance of counsel, the
petitioner must establish both that counsel‟s performance was deficient and that the
deficiency prejudiced the defense. Finch v. State, 226 S.W.3d 307, 315 (Tenn. 2007).
Deficiency requires showing that counsel‟s errors were so serious “that counsel was not
functioning as the „counsel‟ guaranteed the defendant by the Sixth Amendment.”
Strickland, 466 U.S. at 687. To demonstrate deficiency, the petitioner must show that
counsel‟s performance fell below an objective standard of reasonableness under
                                           -6-
prevailing professional norms. Pylant, 263 S.W.3d at 868. Courts must make every
effort “„to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel‟s challenged conduct, and to evaluate the conduct from counsel‟s perspective at
the time.‟” Felts v. State, 354 S.W.3d 266, 277 (Tenn. 2011) (quoting Strickland, 466
U.S. at 689). The reviewing court must begin with “the strong presumption that counsel
provided adequate assistance and used reasonable professional judgment to make all
strategic and tactical significant decisions.” Davidson v. State, 453 S.W.3d 386, 393
(Tenn. 2014).

        In determining prejudice, the post-conviction court must decide whether there is a
reasonable probability that, absent the errors, the result of the proceeding would have
been different. Grindstaff, 297 S.W.3d at 216. “„A reasonable probability is a
probability sufficient to undermine confidence in the outcome.‟” Honeycutt, 54 S.W.3d
at 768 (quoting Strickland, 466 U.S. at 694). “That is, the Petitioner must establish that
his counsel‟s deficient performance was of such a degree that it deprived him of a fair
trial and called into question the reliability of the outcome.” Finch, 226 S.W.3d at 316.

       The Strickland standard for determining whether a petitioner received the
ineffective assistance of counsel applies in plea negotiations as well as during trial. Hill
v. Lockhart, 474 U.S. 52, 58 (1985); see also Missouri v. Frye, 132 S.Ct. 1399, 1409
(2012). In order to show prejudice in the context of a guilty plea, the petitioner must
demonstrate “a reasonable probability that, but for counsel‟s errors, he would not have
pled guilty and would have insisted on going to trial.” Grindstaff, 297 S.W.3d at 217
(quoting Hill, 474 U.S. at 59). The inquiry should focus on whether any alleged
deficiency affected the outcome of the plea process. Grindstaff, 297 S.W.3d at 217.

       A claim may be denied for failure to prove either deficiency or prejudice, and a
court need not address both prongs if the petitioner has failed to establish either
deficiency or prejudice. Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

        On appeal, the Petitioner asserts that trial counsel was deficient for not challenging
the agreed order based on the discrepancy regarding the dates and that this deficiency was
prejudicial because it resulted in an invalid MVHO conviction. He further asserts that the
failure to appear conviction “never would have existed but for” the failure to investigate
the agreed order.

       Initially, we note that the State correctly observes that in remanding this case for a
hearing, this court concluded that the agreed order regarding the Petitioner‟s status as a
habitual motor vehicle offender may not be attacked by means of a post-conviction
petition. See Kevin Lee Johnson I, 2015 WL 2445817, at *2 (citing Bankston v. State,
815 S.W.2d 213, 217 (Tenn. Crim. App. 1991) (Calhoun, Sp. J., concurring)). We note
                                            -7-
likewise that any attack on the MVHO conviction itself is barred by the limitations period
applicable to post-conviction petitions. See id.; T.C.A. § 40-30-102(a). Accordingly, the
only issue we address is whether the Petitioner‟s counsel was deficient in failing to
challenge the agreed order declaring him a habitual motor vehicle offender and whether
there is a reasonable probability that, but for any deficiency regarding the order, the
Petitioner would not have pled guilty to failure to appear.

        We conclude that the Petitioner cannot show any prejudice stemming from any
alleged omissions by trial counsel. The Petitioner failed to appear to serve his prison
sentences for theft, reckless endangerment, and resisting arrest in addition to the sentence
for the MVHO violation. The Petitioner was furthermore obligated to appear in court and
begin serving his sentences regardless of the validity of the MVHO order. Even if the
conviction for that violation were somehow invalid, the Petitioner has not shown a
reasonable probability that he would not have pled guilty to the offense which is the
subject of this post-conviction petition. The Petitioner acknowledged that he was ordered
to appear in court to begin serving his four sentences and that he failed to do so. His trial
counsel testified she investigated the failure to appear offense and that the Petitioner gave
no reason for missing his scheduled appearance. Accordingly, there is no reasonable
probability that the investigation of any irregularity in the MVHO agreed order would
have changed the Petitioner‟s motivations to plead guilty to the failure to appear offense,
which he acknowledged committing. We note that the MVHO order appears to be valid
and that the record supports the trial court‟s finding that there was no deficient
performance because the Petitioner qualified as a habitual offender under the statute. See
T.C.A. § 55-10-603(2)(A)(viii), (xv). The Petitioner asserts that his aggregate sentence
of twenty years and six months2 for various nonviolent offenses is lengthy, but the issue
before us is whether he received the ineffective assistance of counsel in his negotiated
five-year sentence for the Marshall County conviction for failure to appear, and we
discern no deficiency or prejudice in trial counsel‟s representation of the Petitioner.
Accordingly, the Petitioner is not entitled to relief.

                                       CONCLUSION

      Based on the foregoing reasoning, we affirm the denial of the petition for post-
conviction relief.




       2
         A TOMIS report contained in the record indicates that this is the aggregate length of the
Petitioner‟s sentences, and the Petitioner affirms that this is the length of his sentences.
                                              -8-
____________________________________
JOHN EVERETT WILLIAMS, JUDGE




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