                                                                                          03/28/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs October 2, 2018

                 BRENDA WOODS v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for McNairy County
                      No. 3171     J. Weber McCraw, Judge
                     ___________________________________

                           No. W2017-02345-CCA-R3-PC
                       ___________________________________

The Petitioner, Brenda Woods, appeals the McNairy County Circuit Court’s denial of her
petition for post-conviction relief, seeking relief from her convictions for three counts of
procuring an illegal vote and resulting effective two-year sentence to be served on
community corrections. Based upon the record and the parties’ briefs, we affirm the
post-conviction court’s denial of the petition.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and ALAN E. GLENN, J., joined.

Paul Forrest Craig, Memphis, Tennessee, for the appellant, Brenda Woods.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; D. Michael Dunavant, District Attorney General; and Kirby May,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                 I. Factual Background

       This case relates to a May 2009 election in which the Petitioner procured the votes
of several convicted felons in a municipal election in which she was a candidate. On
October 1, 2010, a Hardeman County Circuit Court Jury convicted her of three counts of
procuring an illegal vote, a Class E felony, and the trial court sentenced her to concurrent
two-year sentences to be served on probation. On direct appeal of her convictions, this
court concluded that the State committed prosecutorial misconduct and that the
misconduct deprived the Petitioner of her due process rights to a fair trial. State v.
Brenda Woods, No. W2011-02366-CCA-R3-CD, 2012 WL 6476376, at *7 (Tenn. Crim.
App. at Jackson, Dec. 13, 2012). Accordingly, this court reversed her convictions and
remanded the case for a new trial. Id. at *8.

       The Petitioner was retried in McNairy County. On May 20, 2014, a McNairy
County jury convicted her again of three counts of procuring an illegal vote, and the trial
court sentenced her to concurrent two-year sentences to be served on community
corrections. In addition, she was disqualified from holding public office for the duration
of her sentences, and her right to vote was permanently revoked. On direct appeal of her
convictions, the Petitioner claimed that the evidence was insufficient to support the
convictions, that her being retried and convicted by a second jury violated double
jeopardy, that the trial court admitted irrelevant evidence, and that the prosecutor made
improper closing arguments. State v. Brenda Woods, No. W2014-01850-CCA-R3-CD,
2015 WL 5838719, at *1 (Tenn. Crim. App. at Jackson, Oct. 7, 2015), perm. app. denied,
(Tenn. Mar. 24, 2016). This court affirmed the Petitioner’s convictions. Id.

       After our supreme court denied the Petitioner’s application for permission to
appeal, post-conviction counsel filed a timely petition for post-conviction relief, alleging
that the Petitioner received the ineffective assistance of trial counsel; that her being
retried and convicted by a second jury violated double jeopardy principles; that
Tennessee Code Annotated section 2-19-117, the statute she was convicted of violating,
was unconstitutionally vague and overbroad; and that her right to vote should not have
been permanently revoked.

       The post-conviction court held an evidentiary hearing on October 9, 2017. The
appellate record reflects that the Petitioner, trial counsel, and appellate counsel testified at
the hearing. On November 3, 2017, the court filed a written order denying the petition.

                                         II. Analysis

       On appeal, the Petitioner contends that the post-conviction court erred by denying
her petition for post-conviction relief because she received the ineffective assistance of
counsel, she was denied her constitutional right to be free from double jeopardy, and
Tennessee Code Annotated section 2-19-117 is unconstitutionally vague and overbroad.
The State argues that the Petitioner has waived consideration of her ineffective assistance
of counsel claim because the record is inadequate for our review. The State further
argues that her double jeopardy claim was previously determined by this court and that
her statutory claim has been waived because she failed to present it during her direct
appeal. We agree with the State.

                            A. Ineffective Assistance of Counsel

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        To be successful in a claim for post-conviction relief, a petitioner must prove the
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn.
Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.
1992)). Issues regarding the credibility of witnesses, the weight and value to be accorded
their testimony, and the factual questions raised by the evidence adduced at trial are to be
resolved by the post-conviction court as the trier of fact. See Henley v. State, 960
S.W.2d 572, 579 (Tenn. 1997). Therefore, the post-conviction court’s findings of fact are
entitled to substantial deference on appeal unless the evidence preponderates against
those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

       A claim of ineffective assistance of counsel is a mixed question of law and fact.
See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction
court’s findings of fact de novo with a presumption that those findings are correct. See
Fields, 40 S.W.3d at 458. However, we will review the post-conviction court’s
conclusions of law purely de novo. Id.

        When a petitioner seeks post-conviction relief on the basis of ineffective
assistance of counsel, “the petitioner bears the burden of proving both that counsel’s
performance was deficient and that the deficiency prejudiced the defense.” Goad v.
State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)). To establish deficient performance, the petitioner must show that counsel's
performance was below “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the
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. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. Further,

              [b]ecause a petitioner must establish both prongs of the test, a
              failure to prove either deficiency or prejudice provides a
              sufficient basis to deny relief on the ineffective assistance
              claim. Indeed, a court need not address the components in any
              particular order or even address both if the [petitioner] makes
              an insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).



                                           -3-
        The Petitioner failed to include the transcript of the post-conviction evidentiary
hearing in the appellate record. It is a petitioner’s duty to provide a record that is
sufficient “to convey a fair, accurate and complete account of what transpired with
respect to those issues that are the bases of appeal.” Tenn. R. App. P. 24(b). Moreover,
even though the State notes in its brief that the transcript is absent from the record and
argues that the record is inadequate for our review, the Petitioner has chosen to let the
record remain incomplete rather than request permission to supplement the record with
the transcript pursuant to Rule 24(g), Tennessee Rules of Appellate Procedure. When the
transcript of the proceedings relevant to the issue presented for review is not included in
the record, this court is precluded from considering the issue. State v. Roberts, 755
S.W.2d 833, 836 (Tenn. Crim. App. 1988). In the absence of an adequate record on
appeal, we must presume that the trial court correctly ruled upon the issue. Id.
Therefore, we assume that the findings and conclusions of the post-conviction court with
respect to the Petitioner’s allegation of ineffective assistance are correct, and the
Petitioner is not entitled to relief.

                                    B. Double Jeopardy

        Next, the Petitioner claims that her being retried and convicted by a second jury
denied her of constitutional right to be free from double jeopardy. In support of her
argument, she relies on Sentoryia Lawand Young v. State, No. M2010-01762-CCA-R3-
PC, 2011 WL 3630128, at *4 (Tenn. Crim. App. at Nashville, Aug. 18, 2011), in which
this court stated that “[a] retrial of a defendant following the declaration of a mistrial may
implicate concerns for a violation of principles of double jeopardy.” However, the
Petitioner raised this exact issue and relied on Sentoryia Lawand Young on direct appeal
of her convictions. This court found the Petitioner was not entitled to relief, explaining
as follows:

                     The Defendant’s reliance on Sentoryia Lawand Young
              is misplaced. Sentoryia Lawand Young stands for the
              proposition that double jeopardy principles are implicated
              when a prosecutor elicits improper testimony with the
              intention of provoking a mistrial. The Defendant’s argument
              that the State “goaded reversal by its actions” (emphasis
              added) relies on an extension of the law that is unsupported
              by [Oregon v. Kennedy, 456 U.S. 667, 676 (1982)] and [State
              v. Tucker, 728 S.W.2d 27, 31 (Tenn. Crim. App. 1986)].
              The Defendant’s case is distinguished from Sentoryia Lawand
              Young because she has presented no evidence that the
              prosecutor in the first trial acted with the intention of
              provoking a mistrial when he questioned the witnesses
                                            -4-
              regarding their motives for testifying. Because the Defendant
              has failed to establish a claim for plain error relief, she is not
              entitled to relief on this basis.

Brenda Woods, No. W2014-01850-CCA-R3-CD, 2015 WL 5838719, at *10. Therefore,
we agree with the State that this issue has been previously determined. See Tenn. Code
Ann. § 40-30-106(h).

        Moreover, the post-conviction court stated in its order denying relief that “Ms.
Woods offered no evidence [at the evidentiary hearing] to indicate that the prosecutor in
the first trial intended to cause a mistrial. No evidence was presented to show that the
prosecutor did anything to goad or provoke a mistrial.” As stated previously, because the
Petitioner failed to include the transcript of the evidentiary hearing in the appellate
record, we must presume that the post-conviction court correctly ruled on this issue.

                              C. Constitutionality of Statute

       Finally, the Petitioner contends that Tennessee Code Annotated section 2-19-117,
which provides that “[it] is a Class E felony for any person to procure, aid, assist, counsel
or advise another to vote in any convention, primary or final election, knowing such
person is disqualified,” is unconstitutionally vague and overbroad. Initially, we note that
the post-conviction court did not address the constitutionality of the statute as an
independent claim for relief but instead considered it as a ground for ineffective
assistance of counsel, stating, “Ms. Woods testified to her unsubstantiated and mistaken
belief that [the] law under which she was convicted is unconstitutional. Again, Ms.
Woods’ understanding of the law is misplaced and her counsel was ethically precluded
from raising issues that are without merit.” The Petitioner does not assert that we should
remand the case to the post-conviction court and direct that court to rule on his stand-
alone claim that the statute is unconstitutional.

       Regardless, Tennessee Code Annotated section 40-30-106(g) states that “[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.” While there are exceptions to that rule,
the Petitioner’s claim does not fit within either of them. See Tenn. Code Ann. § 40-30-
106(g)(1), (2). Moreover, as noted by the State, plain error does not apply to an issue in a
post-conviction proceeding if that issue has been waived. Grindstaff v. State, 297 S.W.3d
208, 219 (Tenn. 2009). Thus, the Petitioner is not entitled to relief.

                                      III. Conclusion

                                            -5-
       Based upon the record and the parties’ briefs, we affirm the post-conviction
court’s denial of the petition.

                                             _________________________________
                                             NORMA MCGEE OGLE, JUDGE




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