                                                                                                           07/22/2019
         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs May 7, 2019 at Jackson

           WILLIAM HENRY SMITH, JR. v. STATE OF TENNESSEE

                     Appeal from the Circuit Court for Bedford County
                       No. 18080PC Forest A. Durard, Jr., Judge


                                  No. M2018-01302-CCA-R3-PC


The petitioner, William Henry Smith, Jr., appeals the denial of his petition for post-
conviction relief, which petition challenged his 2015 conviction of conspiracy to sell and
deliver one-half grams or more of a Schedule II drug,1 alleging that he was deprived of
the effective assistance of counsel. Discerning no error, we affirm the denial of post-
conviction relief.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL, and D. KELLY THOMAS, JR., JJ., joined.

Jonathan C. Brown, Fayetteville, Tennessee, for the appellant, William Henry Smith, Jr.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Robert J. Carter, District Attorney General; and Mike Randles,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                               OPINION

              A Bedford County Circuit Court jury convicted the petitioner of conspiracy
to sell and deliver 0.5 grams or more of a Schedule II controlled substance arising out of
an incident in which the petitioner, along with Kavaris Kelso, arranged to sell one-and-a-
half ounces of cocaine to Candy Rutledge, a confidential informant (“CI”). State v.
William Henry Smith, Jr., No. M2016-01475-CCA-R3-CD (Tenn. Crim. App., Nashville,
Jan. 13, 2017). On direct appeal, this court summarized the evidence at trial as follows:

1
         Although the offense charged in this case is disjunctive in the statute, see T.C.A. § 39-17-417(a),
the indictment charged the petitioner with “knowingly, unlawfully and feloniously conspir[ing] to sell
and deliver a controlled substance.” (emphasis added).
                      . . . [T]he [petitioner] negotiated with the CI to sell her
              an ounce and a half of cocaine. The [petitioner] and the CI
              knew each other from grade school and communicated via
              Facebook where the [petitioner] first sought to sell the CI
              drugs. When the CI was in Shelbyville, the [petitioner]
              contacted the CI via text to confirm the arrangement they had
              made regarding a drug sale. The following day, the CI met
              with the [petitioner] and, for the first time, Mr. Kelso to
              discuss more details of the transactions. Following this
              meeting, the CI met with police, who thoroughly searched her
              and provided her with a recording device. The CI then
              contacted the [petitioner] who agreed to meet the CI in her
              motel room where he was to call Mr. Kelso to learn the exact
              location of the transaction. After the [petitioner] spoke with
              Mr. Kelso, the [petitioner] and the CI left the motel and got
              into her rental car. The CI drove the [petitioner], at the
              [petitioner’s] direction, in a circuitous route around town for
              approximately a half hour before ultimately arriving at the
              Bedford Manor Apartments.

                     At the motel room, throughout the drive, and once at
              the apartment complex, the [petitioner] attempted to convince
              the [CI] to give him the money, saying that he would get the
              drugs and bring them back to her. At the apartment complex,
              Mr. Kelso stood near the car as the [petitioner] negotiated
              how the exchange should occur.

Id., slip op. at 9. The trial court sentenced the petitioner to 15 years’ incarceration, and
this court affirmed the petitioner’s conviction on appeal. Id., slip op. at 10. In May 2017,
the petitioner filed a petition for “Writ of Error,” which the trial court treated as a writ of
error coram nobis and denied.

              The petitioner filed a timely pro se petition for post-conviction relief on
January 11, 2018. After the appointment of counsel, the petitioner filed an amended
petition for post-conviction relief, incorporating the pro se petition and alleging the
ineffective assistance of the petitioner’s trial and appellate counsel.

              At the June 18, 2018 evidentiary hearing, the petitioner testified that he met
with trial counsel four to five times before trial with each meeting lasting approximately
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10-15 minutes. The petitioner contended that trial counsel never discussed a trial strategy
with him, but, instead, he discussed only whether the petitioner should accept the State’s
plea offer in light of Ms. Rutledge’s testimony. He also said that trial counsel never
discussed his investigation of the case with him. The petitioner asked trial counsel to
move to suppress certain evidence, but trial counsel told the petitioner that, with the
testimony of Ms. Rutledge and the arresting officer, a jury would convict him anyway.

               The petitioner stated that Ms. Rutledge had testified at the preliminary
hearing that she had never worked for the drug task force before, and, because the
petitioner believed that testimony to be a lie, he brought that matter to the attention of
trial counsel, but counsel did not investigate the matter. He acknowledged that trial
counsel said that he would move to discover Ms. Rutledge’s criminal history. The
petitioner said that he had known Ms. Rutledge since elementary school, was aware of
her criminal history, and notified counsel of such, but trial counsel failed to investigate
her involvement in other cases of the drug task force. The petitioner acknowledged that
trial counsel had a copy of the preliminary hearing transcript but stated that trial counsel
did not admit the transcript as a trial exhibit or impeach Ms. Rutledge with any
inconsistent statements.

               The petitioner asserted that Agent Timothy Miller also testified at trial
inconsistently with his testimony at the preliminary hearing, but trial counsel likewise did
not use the inconsistent statements for impeachment. By way of illustration, the
petitioner stated that Agent Miller testified at trial that Ms. Rutledge had worked with the
drug task force for three years but that, at the preliminary hearing, Agent Miller had
stated that he could not remember Ms. Rutledge’s participating in any other cases.

               The petitioner acknowledged that the police did not find any illegal
substances on him at the time of his arrest. He stated that, at the time of his trial, his co-
conspirator, Mr. Kelso, had been charged with murder in an unrelated case and that Mr.
Kelso’s name had been mentioned by newspapers in connection with the murder. The
petitioner asserted that, despite this negative publicity as to Mr. Kelso, trial counsel failed
to object to the use of Mr. Kelso’s name at trial.

              The petitioner testified that he did not understand his sentencing exposure
or his career offender status because trial counsel never explained it to him. He
understood the State’s plea offer to be for 15 years to be served at 45 percent. He
acknowledged that he had “about five prior felonies” but stated that he did not understand
that he would be considered a career offender if convicted at trial. He contended that,
had he understood the career offender sentencing scheme, he would have given the
State’s plea offer greater consideration. According to the petitioner, trial counsel never
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discussed the substance of the appeal with him, and the petitioner did not feel that
counsel had adequately argued the issues.

              During cross-examination, the petitioner testified that a proper trial strategy
should have included attacking Ms. Rutledge’s credibility and impeaching her and Agent
Miller with inconsistent statements. He acknowledged that trial counsel cross-examined
Ms. Rutledge on her prior convictions but maintained that counsel failed to investigate
other cases in which Ms. Rutledge may have participated with the drug task force.

                He acknowledged that his and Ms. Rutledge’s were the voices heard on the
audio recording that was admitted at trial. He also acknowledged that other officers
testified at trial to observing the interactions between the petitioner, Ms. Rutledge, and
Mr. Kelso. He agreed that the cocaine seized in this case was found on Mr. Kelso. The
petitioner understood that Mr. Kelso was named in the indictment but averred that the
State’s referring to Mr. Kelso and saying, “I am sure you all read the newspaper and
watch the . . . news” during jury selection implied that Mr. Kelso was charged with
murder in another case and prejudiced the jury against him by suggesting the petitioner’s
guilt based on his association with Mr. Kelso.

              The petitioner agreed that trial counsel’s strategy was to point to Mr. Kelso
as the sole guilty party, but the petitioner maintained that this strategy was inadequate to
defend against a charge of conspiracy. Instead, he contended that counsel should have
devised a strategy to attack the conspiracy charge, suggesting that counsel should have
argued that the petitioner was never recorded talking to Mr. Kelso. As to Ms. Rutledge’s
testimony that Mr. Kelso called the petitioner’s phone at some point to arrange the
transaction, the petitioner asserted that counsel should have argued the lack of
corroborating evidence. He acknowledged that Ms. Rutledge testified to meeting with
the petitioner and Mr. Kelso before the recorded interaction occurred, but the petitioner
maintained that Ms. Rutledge’s testimony was not credible.

             On redirect examination, the petitioner testified that trial counsel never
discussed with him the possibility of seeking a change of venue.

              Trial counsel testified that he met with the petitioner five or six times and
reviewed all discovery materials with the petitioner at the jail and that an investigator
from his office played all of the audio recordings for the petitioner. He stated that he did
not file any pretrial motions because he found no legal basis to do so. Trial counsel was
aware of Mr. Kelso’s pending murder charge and recalled that it was a “[f]airly” big deal
within Bedford County but stated that most people did not pay attention to it. He recalled
being concerned about the petitioner’s being associated with Mr. Kelso in light of the
                                             -4-
murder charge. He discussed his concerns with the prosecutor who agreed that Mr.
Kelso’s unrelated charges would not be raised at trial. Trial counsel stated that, in the
State’s jury voir dire, the prosecutor asked if anyone knew Mr. Kelso but did not mention
Mr. Kelso’s criminal history.

               Trial counsel said that he did not interview Ms. Rutledge because he could
not locate her. He had learned that Ms. Rutledge was in jail, but when he went to
interview her, she had been released. He stated that his investigation included speaking
with the officers on the drug task force, listening to the audio recordings, reading the
preliminary hearing transcript, and investigating the prior record. He contended that Ms.
Rutledge’s testimony was consistent with all of the information he had gathered about the
case. Trial counsel stated that he believed it was important to impeach Ms. Rutledge’s
credibility, which he did at trial by cross-examining her about her prior convictions. He
recalled that, at trial, Ms. Rutledge testified that she had worked with other agencies in
drug-related cases and that, at the preliminary hearing, she testified that she had never
worked with this particular drug task force before this case.

             Trial counsel testified that he discussed the sentencing range with the
petitioner and that the petitioner understood that he would be a career offender if
convicted at trial. He also discussed the State’s plea offer with the petitioner. Trial
counsel said that he did not reduce the State’s offer or the petitioner’s sentencing
exposure to writing because he had discussed it orally with the petitioner.

               During cross-examination, trial counsel stated that he understood that the
State’s case relied heavily on the audio recording of the petitioner and Ms. Rutledge’s
arranging a drug deal. He agreed that the recording and the testimony against the
petitioner were “pretty damaging.” Trial counsel explained that his trial strategy was to
show that Mr. Kelso was the drug dealer and that the petitioner’s involvement rose only
to the level of the lesser included offense of facilitation. He stated that he did not think
that Ms. Rutledge’s inconsistent statements about whether she had worked for the drug
task force before this case spoke to her credibility.

              He testified that the State’s plea offer was not significantly favorable to the
petitioner because the State offered 15 years to be served at 45 percent and the
petitioner’s exposure at trial was 15 years to be served at 60 percent. Trial counsel
maintained that he explained to the petitioner the significance of his criminal history and
the career offender status.

           Trial counsel explained that there was no legal basis on which he could
move to suppress the drugs found on Mr. Kelso without admitting that the drugs
                                             -5-
belonged to the petitioner. Similarly, he stated that he did not move for a change of
venue because he did not believe there was a legal basis supporting such a motion.

               At the close of evidence, the post-conviction court took the matter under
advisement. In its written order denying post-conviction relief, the court found that no
basis existed for the suppression of any evidence because no evidence was collected from
the petitioner’s person at the time of arrest. The court further found that, because the
petitioner failed to offer any evidence of Ms. Rutledge’s prior activities with the drug
task force, he failed to show that he was prejudiced by counsel’s failure to investigate the
matter. Similarly, the court concluded that, although trial counsel did not interview Ms.
Rutledge before trial, the petitioner presented no evidence that such an interview would
have provided him with any information beyond what was adduced at the preliminary
hearing. Additionally, because the petitioner did not call Ms. Rutledge or Agent Miller to
testify at the evidentiary hearing and did not offer the transcript of the preliminary
hearing into evidence, the court concluded that he failed to establish that trial counsel
performed deficiently by failing to impeach them with inconsistent statements.

               Furthermore, the post-conviction court concluded that because “no
unnecessary emphasis was placed on the name” of Mr. Kelso at trial, the petitioner failed
to establish prejudice as to that issue. Likewise, the court concluded that the petitioner
presented no evidence to establish that he was prejudiced by trial counsel’s failure to
discuss a trial strategy with him. As to trial counsel’s failure to argue mitigating factors
at sentencing, the court concluded that mitigating and enhancement factors were
irrelevant when sentencing a defendant as a career offender. Finally, the court observed
that the sole issue counsel raised on appeal was sufficiency of the evidence and that this
court’s rejecting the petitioner’s arguments and affirming his convictions did not render
trial counsel’s representation on appeal deficient.

               In this timely appeal, the petitioner argues that the post-conviction court
erred by denying post-conviction relief, asserting that he was deprived of the effective
assistance of counsel by trial counsel’s (1) failing to move to suppress certain evidence,
(2) failing to properly investigate and impeach Ms. Rutledge, (3) failing to discuss a trial
strategy with the petitioner, (4) failing to explain to the petitioner his sentencing exposure
as a career offender, (5) failing to seek a venue change, (6) failing to argue mitigating
factors at sentencing, and (7) failing to adequately argue the issue of sufficiency on
appeal.

              We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “when the conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
                                             -6-
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. A post-
conviction petitioner bears the burden of proving his or her factual allegations by clear
and convincing evidence. Id. § 40-30-110(f). On appeal, the appellate court accords to
the post-conviction court’s findings of fact the weight of a jury verdict, and these findings
are conclusive on appeal unless the evidence preponderates against them. Henley v.
State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn.
Crim. App. 1997). By contrast, the post-conviction court’s conclusions of law receive no
deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453
(Tenn. 2001).

                Before a petitioner will be granted post-conviction relief based upon a
claim of ineffective assistance of counsel, the record must affirmatively establish, via
facts clearly and convincingly established by the petitioner, that “the advice given, or the
services rendered by the attorney, are [not] within the range of competence demanded of
attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and
that counsel’s deficient performance “actually had an adverse effect on the defense,”
Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, 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.” Id. at 694. Should the
petitioner fail to establish either deficient performance or prejudice, he is not entitled to
relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
. . . that course should be followed.” Strickland, 466 U.S. at 697.

              When considering a claim of ineffective assistance of counsel, a reviewing
court “begins with the strong presumption that counsel provided adequate assistance and
used reasonable professional judgment to make all significant decisions,” Kendrick v.
State, 454 S.W.3d 450, 458 (Tenn. 2015) (citation omitted), and “[t]he petitioner bears
the burden of overcoming this presumption,” id. (citations omitted). We will not grant
the petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or
provide relief on the basis of a sound, but unsuccessful, tactical decision made during the
course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.
1994). Such deference to the tactical decisions of counsel, however, applies only if the
choices are made after adequate preparation for the case. Cooper v. State, 847 S.W.2d
521, 528 (Tenn. Crim. App. 1992).

             The petitioner first asserts that counsel performed deficiently by failing to
seek the suppression of “the illegal substance that was recovered from the co-defendant.”
The post-conviction court found that no evidence was found on the petitioner at the time
                                             -7-
of his arrest and that, therefore, no evidence existed that was subject to suppression. The
record supports the post-conviction court’s conclusion. The petitioner conceded that the
evidence at issue was found on his co-defendant and offers no legal basis on which he
would have standing to suppress its admission. See State v. Cothran, 115 S.W.3d 513,
520 (Tenn. Crim. App. 2003) (The constitutional protections against unreasonable search
and seizure “are personal in nature, and ‘they may be enforced by exclusion of evidence
only at the instance of one whose own protection was infringed by the search and
seizure’” (quoting State v. Ross, 49 S.W.3d 833, 840 (Tenn. 2001)). “In order to
challenge the reasonableness of a search or seizure, the defendant must have a legitimate
expectation of privacy in the place or thing to be searched.” Cothran, 115 S.W.3d at 520-
21 (citing Ross 49 S.W.3d at 840); see also Smith v. Maryland, 442 U.S. 735, 740 (1979);
State v. Munn, 56 S.W.3d 486, 494 (Tenn. 2001); State v. Oody, 823 S.W.2d 554, 560
(Tenn. Crim. App. 1991). Because the petitioner has failed to establish a ground on
which the drugs could have been suppressed, he has failed to show that trial counsel
performed deficiently by failing to move for suppression.

              As to the petitioner’s claim that counsel should have moved to compel Ms.
Rutledge’s criminal history and prior activities with the drug task force, we observe that
the petitioner has failed to present any evidence of what counsel could have discovered
had he investigated those matters. Hence, the petitioner cannot prevail on this claim. See
Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990) (“When a petitioner
contends that trial counsel failed to discover, interview, or present witnesses in support of
his defense, these witnesses should be presented by the petitioner at the evidentiary
hearing.”). Furthermore, the post-conviction court found that trial counsel cross-
examined Ms. Rutledge on her criminal record, and the petitioner has failed to show on
what other criminal activities counsel could have questioned her.

                Next, the petitioner asserts that trial counsel failed to discuss a trial strategy
with him. At the evidentiary hearing, counsel testified that his trial strategy was to show
that Mr. Kelso was the primary drug dealer and that the petitioner’s culpability rose only
to the level of facilitation. The petitioner suggested alternative defenses trial counsel
could have asserted at trial; however, counsel’s strategy was not unreasonable under the
circumstances, and we will not second-guess trial counsel’s decision. See Adkins, 911
S.W.2d at 347. Although the petitioner contends that trial counsel should have discussed
the trial strategy with him, the petitioner presented no evidence showing how he could
have achieved a different outcome at trial had he known of trial counsel’s strategy.

              The petitioner next argues that trial counsel did not explain to him his
sentencing exposure as a career offender. The petitioner’s statement at the evidentiary
hearing that he would have “put a little more thought into” the State’s plea offer had he
                                               -8-
understood his sentencing exposure is insufficient to establish that he would have
accepted the offer. Consequently, the petitioner has failed to show prejudice on this
issue. Relatedly, the petitioner asserts that trial counsel failed to argue any mitigating
factors at his sentencing hearing. Because the petitioner did not offer any proof of
mitigating factors that trial counsel could have raised, he has failed to establish that
counsel performed deficiently at the sentencing hearing. Moreover, because the
petitioner was sentenced as a career offender, he was sentenced to the only statutorily
available sentence.

              As to the petitioner’s claim that trial counsel should have moved for a
change of venue due to Mr. Kelso’s pending murder charge, the post-conviction court
found that Mr. Kelso’s murder charge was not raised at trial and “no unnecessary
emphasis was placed on the name of [Mr. Kelso] at trial beyond what was necessary to
prove the conspiracy.” Trial counsel testified that he discussed his concern about the
petitioner’s connection to Mr. Kelso with the prosecutor who agreed to omit at trial any
reference to Mr. Kelso’s murder charge. Trial counsel also testified that he believed there
was no legal basis on which to request a change of venue. The petitioner presented no
proof that any juror was aware of Mr. Kelso’s murder charge other than his testimony
that Mr. Kelso’s name had been in the newspaper. Therefore, even if trial counsel
performed deficiently in this matter, the petitioner has failed to show that he was
prejudiced by counsel’s conduct.

               Finally, the petitioner asserts that counsel failed to adequately argue the
issue of sufficiency on direct appeal. As the post-conviction court found, sufficiency of
the evidence was the only issue raised on direct appeal. The petitioner seems to suggest
that counsel should have argued on appeal that Ms. Rutledge was not a credible witness
and that her testimony, therefore, was insufficient to support the conviction; however,
issues of witness credibility are resolved by the trier of fact. See State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). Consequently, the petitioner has failed to show that
counsel performed deficiently by failing to raise credibility issues on direct appeal.

             Accordingly, the judgment of the post-conviction court is affirmed.

                                                   _________________________________
                                                  JAMES CURWOOD WITT, JR., JUDGE




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