         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs January 10, 2006

                       A.T. PRUITT v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                             No. P-28554    Chris Craft, Judge



                   No. W2005-01415-CCA-R3-PC - Filed February 8, 2006


The petitioner, A.T. Pruitt, appeals the denial of his petition for post-conviction relief, arguing his
trial counsel was ineffective in communicating to him or preparing him for trial, which resulted in
him entering guilty pleas that were neither knowing or voluntary. Following our review, we affirm
the denial of the petition.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN EVERETT
WILLIAMS, JJ., joined.

Vicki M. Carriker, Memphis, Tennessee, for the appellant, A.T. Pruitt.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Michelle Parks, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

                                               FACTS

                                        Procedural History

       On July 7, 2003, the petitioner pled guilty to two counts of aggravated rape and one count
each of especially aggravated robbery, especially aggravated burglary, and especially aggravated
kidnapping. The facts surrounding these offenses, as taken from the trial court’s order denying the
post-conviction relief petition, are as follows:
        Two separate offenses are the subject of this guilty plea, the June 21, 2000
aggravated rape of victim [J.N.]1 [hereinafter referred to as “the [J.N.] case”] and the
January 29, 2001 aggravated rape, especially aggravated burglary, especially
aggravated robbery and especially aggravated kidnapping of [R.S.] [“the [R.S.]
case”]. From the technical record, petitioner was arrested on the [J.N.] case on July
2, 2000, at age 15, and was transferred by Juvenile Court for prosecution and
sentencing as an adult to Criminal Court on August 30, 2000. [J.N.] stated to police
that she was out in her back yard doing some gardening when an individual came up
to her with a knife, forced her to the ground and raped her. When petitioner’s sister
brought him to the Memphis Police Department homicide office eleven days later,
he gave a signed, written statement . . . to the police admitting that he saw [J.N.] go
into her back yard, and jumped her fence with a knife. He had her in a headlock with
the knife and then ran when a man came into the back yard. He stated he did not
know how her clothes got pulled off, but he denied raping her. When asked “Are you
willing to submit to DNA testing?” he replied “Yes sir.” A copy of this statement,
which he admitted signing during his testimony in the motion to suppress the
statement, is filed in the technical record of the [J.N.] indictment, . . ., after having
been entered as an exhibit in the hearing on the motion. No potential DNA evidence
was recovered in the [J.N.] case. [J.N.] identified the [petitioner] in a photo spread
as the perpetrator. On December 15, 2000, he made a $20,000 bond on that case and
was released from the Shelby County jail. Six weeks after petitioner made bond for
the alleged aggravated rape of [J.N.], [R.S.] reported her aggravated rape, burglary,
robbery and kidnapping . . . . She stated to police that the perpetrator came to her
door, indicated to her that he was a friend of her son, and asked if he was there. She
responded that he wasn’t. He later came back and knocked again, and when she
answered, he forced his way in. She was severely beaten and raped. He took
property from her home, along with the keys to her vehicle. He returned again and
forced her to show him how to drive the vehicle, leaving her door open, so that her
2 year old child left and was later found with a neighbor. He dropped her off in an
unfamiliar neighborhood. He was arrested for that offense January 31, 2001, at age
16, and gave a statement to the police that he was present at [R.S’s] house, but only
took a video game, and committed no act of rape. He was automatically transferred
to General Session Court to be treated as an adult in Shelby County General Sessions
Court, having previously been transferred by juvenile court on the prior aggravated
rape for which he had been on bond, pursuant to Tenn. Code Ann. § 37-1-134(c).
Although a Ms. Hobbs, a Juvenile Defender, represented him in Juvenile Court on
the [J.N.] case, [trial counsel], an attorney with the Shelby County Public Defender’s
office and a member of their Violent Crimes vertical defense unit, was assigned to
represent him on the [R.S.] case after his new arrest. She also represented him at his
preliminary hearing, and on both the [R.S.] and [J.N.] cases after they were both
indicted. Although [R.S.] identified petitioner at his preliminary hearing, she


1
    It is the policy of this court to refer to victims of sexual offenses by their initials.

                                                       -2-
         apparently made an earlier identification in a photo lineup of another person. A DNA
         comparison was made of semen detected in the [R.S.] case and the probability of its
         being from anyone other than petitioner was found to exceed the world population.

         The petitioner received fifteen-year sentences for each of the aggravated rape, especially
aggravated robbery, and especially aggravated kidnapping convictions and an eight-year sentence
for the especially aggravated burglary. The aggravated rape sentence for J.N.’s case was run
consecutively to all the other sentences because the petitioner had been on bond for that charge when
he committed the other offenses. This resulted in the petitioner receiving a total effective sentence
of thirty years, to be served at 100% as a violent offender, in the Department of Correction.

        On June 10, 2004, the petitioner, pro se, filed for post-conviction relief. Post-conviction
counsel was appointed and an amended petition was filed which argued, among other numerous
things, that the petitioner’s guilty pleas were involuntary due to ineffective assistance of counsel.
The petitioner claimed that trial counsel did not adequately communicate with him concerning the
investigation of his case, the penalties he was facing, or the results of his DNA test. He also
contended that trial counsel failed to interview witnesses and failed to file pretrial motions to
ascertain his competency to stand trial and suppress a complaining witness’s identification of him.

                                            Post-Conviction Hearing

        Trial counsel testified that she met with the petitioner both in the courtroom and “in the jail
as well.” She explained that after she “got all the discovery from the State” for both rape cases, she
provided the petitioner with a copy.2 Although the petitioner already had a psychological evaluation
while in juvenile court,3 trial counsel had another one done, which showed the petitioner was
competent.4 Asked about the DNA test results, trial counsel said she advised the petitioner that he
matched the DNA test results from the R.S. case but not the J.N. case. Asked if she interviewed or
subpoenaed any other witnesses, trial counsel explained she did not because the petitioner “could
not give [her] any witnesses to call.”5 Trial counsel said she was prepared to go to trial on the J.N.
case when the petitioner decided to plead guilty in both the J.N. and R.S. cases. She said she “told
him that [the J.N.] case was a little bit better than the [R.S.] case because there was no DNA” in the

         2
          Trial counsel also provided the petitioner with additional copies of the discovery after he had his original
copies taken away from him.

         3
          The petitioner’s juvenile public defender gave trial counsel a copy of all “her information from Juvenile Court
which also included a psych report.” Trial counsel gave the petitioner copies of this information as well.

         4
          Trial counsel said that the petitioner never told her he had schizophrenia and that although the mental
evaluation showed the petitioner “had an IQ of 69,” it did not show he had any type of psychosis. She further explained
that “during [her] course of visitations and working with him, [she] did not detect anything wrong either.”

         5
            Trial counsel further elaborated that “[a]ccording to [the petitioner’s] statement there were two other males
who supposedly did [the R.S. case] with him, [she] kept asking him about it, he could not tell [her] any other names, not
tell [her] any other names, so [she] did not have anything to investigate on that.”

                                                          -3-
J.N. case. Trial counsel testified that from the first time she met with the petitioner, she explained
to him the amount of time he could be sentenced to and that he was facing “a hundred percent
charges.” She also said that she went over the entire plea agreement with the petitioner and was
“kind of surprised . . . when he decided that he wanted to go ahead on and plead guilty.”

        The petitioner testified that although he “got discovery” from trial counsel it was only “half
[his] discovery” because he never received the results of his DNA tests and said trial counsel never
discussed the results with him. He also made the following various claims about trial counsel: she
failed to visit him in jail, failed to tell him the results of his mental evaluation or the results of his
motion to suppress hearing, refused to tell him what type of defense they were going forward with,6
had the J.N. and R.S. rape cases “mixed up,” and did not explain his plea agreement or the
sentencing range he was facing. He said that he pled guilty only because he felt he had no help from
trial counsel.

          On cross-examination, the petitioner acknowledged that trial counsel did visit him “outside
the courtroom.” He also initially claimed that he was not present during his suppression hearing but
then acknowledged testifying at the hearing. He also acknowledged that the trial court discussed his
guilty plea with him and told him that he would “be serving as a violent one-hundred percent
offender.” Although he felt he had no help from trial counsel, the petitioner acknowledged not
telling the trial court during his plea proceeding or asking any questions. The petitioner claimed that
if trial counsel had told him the results of the DNA test in the R.S. case, which showed he was the
donor of the semen found, he would not have pled guilty but, instead, would have gone to trial
“[b]ecause [he] knew what was the real reason on [his] case and how [his] case really went about.”
Asked to explain, the petitioner claimed that he did not rape R.S., but instead engaged in consensual
sex “with her and her daughter to be honest.” He acknowledged he never told trial counsel that he
supposedly had consensual sex with the rape victim.

        On May 23, 2005, the post-conviction court entered a detailed written order denying the
petition for post-conviction relief. The court accredited trial counsel’s testimony while finding the
petitioner’s testimony “lacked any indicia of credibility.” Accordingly, the post-conviction court
concluded that the petitioner had “not shown any deficient performance on the part of his attorney
by clear and convincing evidence.”

                                                      ANALYSIS

                                       Ineffective Assistance of Counsel

        On appeal, the petitioner argues that his guilty pleas were involuntary because trial counsel
did not provide effective assistance. He contends that counsel was ineffective because she “failed
to adequately communicate with [him] concerning the investigation of his case” and “failed to


         6
             The petitioner claimed that when he “asked [trial counsel] what type defense she was going to use in [his] case
. . . she told [him] it was -- this was for her to know only.”

                                                            -4-
adequately communicate the minimum and maximum penalties of each charge to which he plead
[sic] guilty.” The State argues that “the record demonstrates that trial counsel adequately represented
the petitioner and communicated to the petitioner the sentence range and release eligibility date.”
We agree with the State.

         In order to determine the competence of counsel, Tennessee courts have applied standards
developed in federal case law. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997)
(noting that the same standard for determining ineffective assistance of counsel that is applied in
federal cases also applies in Tennessee). The United States Supreme Court articulated the standard
in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which is
widely accepted as the appropriate standard for all claims of a convicted petitioner that counsel's
assistance was defective. The standard is firmly grounded in the belief that counsel plays a role that
is “critical to the ability of the adversarial system to produce just results.” Id. at 685, 104 S. Ct. at
2063. The Strickland standard is a two-prong test:

        First, the defendant must show that counsel's performance was deficient. This
        requires showing that counsel made errors so serious that counsel was not
        functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
        Second, the defendant must show that the deficient performance prejudiced the
        defense. This requires showing that counsel's errors were so serious as to deprive the
        defendant of a fair trial, a trial whose result is reliable.

Id. at 687, 104 S. Ct. at 2064. The Strickland Court further explained the meaning of “deficient
performance” in the first prong of the test in the following way:

        In any case presenting an ineffectiveness claim, the performance inquiry must be
        whether counsel's assistance was reasonable considering all the circumstancesAAAA No
        particular set of detailed rules for counsel's conduct can satisfactorily take account
        of the variety of circumstances faced by defense counsel or the range of legitimate
        decisions regarding how best to represent a criminal defendant.

Id. at 688-89, 104 S. Ct. at 2065. The petitioner must establish “that counsel's representation fell
below an objective standard of reasonableness under prevailing professional norms.” House v. State,
44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

        As for the prejudice prong of the test, the Strickland Court stated: “The defendant 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.” 466 U.S. at 694, 104 S. Ct. at 2068; see also Overton v.
State, 874 S.W.2d 6, 11 (Tenn. 1994) (concluding that petitioner failed to establish that “there is a
reasonable probability that, but for counsel's errors, the outcome of the proceedings would have been
different”).



                                                  -5-
        Courts need not approach the Strickland test in a specific order or even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” 466 U.S. at 697,
104 S. Ct. at 2069; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either deficiency
or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”).

        By statute in Tennessee, the petitioner at a post-conviction relief hearing has the burden of
proving the allegations of fact by clear and convincing evidence. See Tenn. Code Ann. § 40-30-
110(f) (2003). A petition based on ineffective assistance of counsel is a single ground for relief,
therefore all factual allegations must be presented in one claim. See Tenn. Code Ann. § 40-30-
206(d).

        We note that when post-conviction proceedings have included a full evidentiary hearing, as
was true in this case, the trial judge's findings of fact and conclusions of law are given the effect and
weight of a jury verdict, and this court is “bound by the trial judge's findings of fact unless we
conclude that the evidence contained in the record preponderates against the judgment entered in the
cause.” Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). The reviewing court must
indulge a strong presumption that the conduct of counsel falls within the range of reasonable
professional assistance, see Strickland, 466 U.S. at 690, 104 S. Ct. at 2066, and may not second-
guess the tactical and strategic choices made by trial counsel unless those choices were uninformed
because of inadequate preparation. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The fact
that a strategy or tactic failed or hurt the defense does not alone support the claim of ineffective
assistance of counsel. See Thompson v. State, 958 S.W.2d 156, 165 (Tenn. Crim. App. 1997).
Finally, a person charged with a criminal offense is not entitled to perfect representation. See
Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). As explained in State v. Burns, 6
S.W.3d 453, 462 (Tenn. 1999), “[c]onduct that is unreasonable under the facts of one case may be
perfectly reasonable under the facts of another.”

        In denying the post-conviction petition, the post-conviction court made the following findings
of facts:

                An analysis of the proof at the hearing must start with this Court’s finding on
        the record at the conclusion of the hearing that petitioner’s testimony at the hearing
        on this petition lacked any indicia of credibility. His demeanor on the stand and his
        constantly changing testimony made it clearly apparent to this Court, if not to all
        present in the courtroom, that petitioner was making up much of his testimony on the
        spot as he was being questioned. While making sweeping, vague statements as to the
        reasoning behind his thinking, his theories simply made no sense. He refused to
        delineate any concrete acts his attorney should have taken that would have reasonably
        made a difference in his decision to plead guilty. As examples of this impeached
        testimony, he complained that his attorney never heard a motion to suppress his
        statement in the [J.N.] case, but when confronted with the fact that the motion had
        been heard, he stated he was not present at the hearing. He then changed his
        testimony when confronted with the fact that he testified as a witness during the


                                                  -6-
       hearing. He claimed he had never been told the results of any DNA test, and insisted
       that if he had known he was pointed out by the DNA evidence as the perpetrator, that
       he would not have plead[ed] guilty, but would have insisted on going to trial, which
       makes no sense. He could not explain why an assumed absence of a DNA match
       would have induced him to plead guilty. He insisted that his attorney had never
       visited him in the jail, but admitted later under cross-examination that his attorney
       gave him another copy of his discovery during a jail visit. He stated at the hearing,
       apparently for the first time ever, that he had had consensual sex with [R.S.], and,
       incredibly, also with her daughter, but apparently never thought to bring this up in the
       conversations he had with his attorney in the two and one-half years the [R.S.] case
       had been pending, and he was insisting [trial counsel] did not keep him informed as
       to the progress of the investigation. His testimony was simply unbelievable. His
       attorney’s testimony, on the other hand, was consistent, unimpeached, and made both
       legal and logical sense.

We agree wholeheartedly with these findings and with the post-conviction court’s characterization
of the petitioner’s testimony as lacking “any indicia of credibility.”

       In addition, the post-conviction court correctly noted in its conclusions of law that:
       All complaints of petitioner concerning lack of investigation, witness interviews,
       tests and motion practice were completely unsupported by any proof of anything done
       which prejudiced petitioner . . . . His attorney acted as her knowledge, experience,
       and talents best permitted and then moved ahead. “When [s]he does this, that is all
       any lawyer can do, and the client has no right to complain of the absence of a
       miracle.” State v. Blackmon, 78 S.W.3d 322, 329 (Tenn. Crim. App., 2001), citing
       Williams v. Beto, 354 F.2d 698, 706 (5th Cir. 1965).

In sum, there is no evidence that counsel was deficient in her representation or that the petitioner
would not have pled guilty were it not for counsel’s alleged deficiencies. We conclude, therefore,
that the petitioner is not entitled to post-conviction relief on the basis of his claim of ineffective
assistance of counsel.

                                          CONCLUSION

       Based upon the foregoing authorities and reasoning, we affirm the post-conviction court’s
dismissal of the petition.

                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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