                                                                                           02/28/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs December 20, 2016

             BILLY RICHARD HICKS v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Knox County
         No. 106730, 105064, 106729, 106731 Steven Wayne Sword, Judge
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                             No. E2016-01437-CCA-R3-PC
                        ___________________________________


The Petitioner, Billy Richard Hicks, appeals the post-conviction court’s denial of his
petition for post-conviction relief in which he challenged his convictions for driving
under the influence (“DUI”), tenth offense; violation of the motor vehicle habitual
offender (“MVHO”) statute; driving on a revoked license, second or subsequent
conviction; and criminal impersonation. On appeal, the Petitioner contends that trial
counsel was ineffective in failing to show the video of the Petitioner’s performance on
the field sobriety tests to the Petitioner prior to trial. We affirm the judgment of the post-
conviction court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J. and JAMES CURWOOD WITT, JR., J., joined.

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Billy R. Hicks.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Charme P. Allen, District Attorney General; and Kenneth F. Irvine, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.


                                         OPINION

                           TRIAL COURT PROCEEDINGS

       After an officer stopped him for driving without a seatbelt on November 6, 2008,
the Petitioner was convicted of DUI, tenth offense; violation of the MVHO statute;
driving on a revoked license, second or subsequent conviction; and criminal
impersonation. See State v. William Richard Hicks, No. E2012-00063-CCA-R3-CD,
2013 WL 5677351, at *1 (Tenn. Crim. App. Oct. 18, 2013), perm. app. denied (Tenn.
Apr. 9, 2014). The evidence presented at trial as summarized by this court on direct
appeal was as follows:

              The events resulting in these convictions occurred on the early
       morning of November 6, 2008, when the defendant was stopped for driving
       without a seatbelt and was unable to produce a driver’s license. He
       provided to the officer a false name, date of birth, and social security
       number. Detecting an odor of alcohol on the defendant’s breath, the officer
       directed that the defendant perform three different field sobriety tests, two
       of which the defendant, who had refused to submit to a blood alcohol test,
       failed. Subsequently, it was determined that the defendant’s driver’s
       license had been revoked and that on November 13, 2001, he had been
       declared a habitual motor vehicle offender.

Id.

        Prior to the beginning of the trial, the Petitioner stated that he had not yet viewed
the video of the stop, and trial counsel acknowledged that he had been unable to show the
video to the Petitioner because his computer equipment malfunctioned. The Petitioner
stated that trial counsel briefly reviewed the State’s discovery with him for approximately
forty-five minutes. Trial counsel stated that he had reviewed the State’s discovery and
was prepared to proceed with the trial.

       A portion of the video of the Petitioner’s stop depicting his performance on the
field sobriety tests was presented at trial during the testimony of the arresting officer.
Following the arresting officer’s testimony, trial counsel announced that the Petitioner
wished to view the video recording and said that trial counsel was unable to play the
video recording for the Petitioner at the jail. The trial court recessed for lunch to allow
the Petitioner the opportunity to view the video. Following the recess, the trial court
asked the Petitioner whether he had an opportunity to see the portions of the video that he
wished to view, and the Petitioner affirmed that he had.

        The defense recalled the arresting officer, and trial counsel questioned the officer
about the Petitioner’s statements on the video. The officer acknowledged that the
Petitioner informed him of issues with his hip and leg but that the Petitioner said he
“could do [the field sobriety tests] fine.” The Petitioner told the officer on the video that
he “was up for a hip replacement.” The officer acknowledged that he did not adjust the
field sobriety tests based upon this information and said he was not aware of any way in
which to adjust the tests. On cross-examination by the State, the officer stated that had
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the Petitioner told him that he was unable to physically perform the tests, the officer
would not have administered them.

       After the jury convicted the Petitioner, the trial court held a sentencing hearing and
sentenced the Petitioner as a Range III persistent offender to six years for the DUI
conviction, six years for the MVHO conviction, eleven months and twenty-nine days for
the conviction for driving on a revoked license, and six months for the criminal
impersonation conviction. William Richard Hicks, 2013 WL 5677351, at *1. The trial
court ordered that the sentences for the misdemeanor convictions run concurrently with
the sentence for the DUI conviction and that the sentences for the DUI and MVHO
convictions be served consecutively, for an effective sentence of twelve years. Id.

        In another trial, the Petitioner was convicted of violation of the MVHO statute,
failure to obey traffic control devices, and failure to provide evidence of compliance with
the financial responsibility law following a traffic stop on October 23, 2009. Id. at *1-2.
The trial court sentenced the Petitioner to six years for the MVHO conviction and to
concurrent terms of thirty days for each of the misdemeanor convictions. Id. at *2, 7.
The trial court ordered the sentence be served consecutively to the Petitioner’s prior
sentence. Id.

        In a third trial, the Petitioner was convicted of violation of the MVHO statute
following a traffic stop on July 6, 2009. Id. at *2. The trial court imposed a six-year
sentence to be served consecutively to the Petitioner’s sentences for the convictions from
the first two trials. Id. at *2, 8.

       The Petitioner appealed his convictions at all three trials, and the appeals were
consolidated in this court. On appeal, the Petitioner challenged the length of his
sentences and the trial court’s decision to impose consecutive sentences, and this court
affirmed the trial court’s judgments but remanded for entry of a corrected judgment as to
one of the counts. Id. at *1.

                        POST-CONVICTION PROCEEDINGS

        The Petitioner filed multiple pro se petitions for post-conviction relief, challenging
his convictions at all three trials and alleging that he received the ineffective assistance of
counsel. The post-conviction court consolidated the petitions and appointed counsel.
Counsel then filed multiple amended petitions. Although in the post-conviction court, the
Petitioner challenged all of his convictions based upon ineffective assistance of counsel,
he limits the issues raised on appeal to the effectiveness of trial counsel from his first
trial, which resulted in his convictions for DUI, tenth offense, violation of the MVHO

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statute, and multiple misdemeanors. Accordingly, we will limit our discussion of the
proceedings in the post-conviction court to matters relevant to the issue raised on appeal.

       At the beginning of the post-conviction hearing, post-conviction counsel
announced that he has been unable to locate witnesses to testify to the issues raised in the
post-conviction petition. Post-conviction counsel informed the post-conviction court that
he understood that trial counsel was “no longer available” and that the Petitioner had
informed him that he did not wish to testify during the hearing. The post-conviction
court questioned the Petitioner, who affirmed that he did not wish to testify during the
hearing, made allegations of misconduct against post-conviction counsel, and alleged that
the transcripts from the trials were “altered drastically.” Post-conviction counsel stated
that he would rely upon the record of the trial and his arguments to support a claim of
ineffective assistance of counsel.

         At the conclusion of the hearing, the post-conviction court made oral findings and
denied the petition for post-conviction relief. The post-conviction court found that even
if trial counsel was deficient in failing to show the Petitioner the video of the stop prior to
trial, the Petitioner failed to present any evidence establishing that any deficiency resulted
in prejudice. On March 31, 2016, the post-conviction court entered an order denying
relief.

       On June 2, 2016, the Petitioner filed an untimely notice of appeal in the post-
conviction court. The Petitioner then filed a motion in this court to waive the timely
filing of the notice of appeal, and this court entered an order granting the Petitioner’s
motion. See Tenn. R. App. P. 4(a).

                                        ANALYSIS

       The Petitioner contends that trial counsel in the first trial was ineffective in failing
to show him the video recording of the stop that resulted in his arrest prior to the trial.
The State responds that even if trial counsel was deficient, any deficiency did not result in
prejudice. We agree with the State.

       The Post-Conviction Procedure Act provides 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); Ward v. State, 315 S.W.3d 461, 465
(Tenn. 2010). “‘Evidence is clear and convincing when there is no serious or substantial
doubt about the correctness of the conclusions drawn from the evidence.’” Grindstaff v.
State, 297 S.W.3d 208, 216 (Tenn. 2009) (quoting Hicks v. State, 983 S.W.2d 240, 245
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(Tenn. Crim. App. 1998)). The findings of fact made by a post-conviction court are
conclusive on appeal unless the evidence preponderates against them. Ward, 315 S.W.3d
at 465. 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).
Mixed questions of fact and law are reviewed de novo, with a presumption of correctness
applied to the factual findings. Ward, 315 S.W.3d at 465. A claim of ineffective
assistance of counsel raises a mixed question of law and fact. Fields v. State, 40 S.W.3d
450, 458 (Tenn. 2001). The trial court’s conclusions of law are reviewed under a purely
de novo standard with no presumption of correctness. Id.

       Both the Sixth Amendment to the United States Constitution and article I, section
9 of the Tennessee Constitution guarantee the criminally accused the right to
representation by counsel. 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 v. State, 202 S.W.3d 106, 116
(Tenn. 2006) (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
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). “‘[A] reviewing court must be highly deferential and should indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.’” Felts, 354 S.W.3d at 277 (quoting State v. Burns, 6 S.W.3d
453, 462 (Tenn. 1999). In evaluating counsel’s performance, “‘[s]trategic choices made
after thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional judgments support the
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limitations on investigation.’” Kendrick v. State, 454 S.W.3d 450, 458 (Tenn. 2015)
(quoting Strickland, 466 U.S. at 690-91). 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.
“A reasonable probability of being found guilty of a lesser charge, or receiving a shorter
sentence, satisfies the second prong of Strickland.” Pylant, 263 S.W.3d at 869.

        Because both prongs must be established for relief, a court need not address both
if the defendant has failed to prove either deficiency or prejudice. Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996). Failure to show either deficiency or prejudice precludes
relief. Felts, 354 S.W.3d at 277.

        Although the Petitioner claims that trial counsel was deficient in failing to show
the video of the stop to him prior to the trial, neither the Petitioner nor trial counsel
testified at the post-conviction hearing. As we have noted, the Petitioner had the burden
of proving his allegations by clear and convincing evidence. By failing to present the
testimony of trial counsel and the Petitioner regarding the events that resulted in the
Petitioner not viewing the video prior to trial, the Petitioner failed to present clear and
convincing evidence of trial counsel’s deficiency.

        The Petitioner also failed to present clear and convincing evidence establishing
that any deficiency resulted in prejudice. The transcript of the trial establishes that the
Petitioner was allowed to see the video recording of the stop during a lunch break at the
trial. After the Petitioner viewed the video, trial counsel recalled the arresting officer as a
witness and questioned him regarding the Petitioner’s statements as to his health issues
and the Petitioner’s ability to perform the field sobriety tests based upon the disabilities.
The Petitioner failed to present any evidence at the post-conviction hearing establishing
other proof that trial counsel could have presented had trial counsel shown the video to
the Petitioner prior to trial. Accordingly, we conclude that the evidence presented at the
post-conviction hearing failed to establish that the Petitioner received ineffective
assistance of counsel.

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                                   CONCLUSION

       Based on our review of the record and the applicable law, we affirm the judgment
of the post-conviction court.



                                           ____________________________________
                                           JOHN EVERETT WILLIAMS, JUDGE




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