        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs March 12, 2014

         ANTONIO DWAYNE JOHNSON v. STATE OF TENNESSEE

               Appeal from the Circuit Court for Montgomery County
                     No. 40900303     John H. Gasaway, Judge




            No. M2013-01919-CCA-R3-PC - Filed March 27, 2014



The Petitioner, Antonio Dwayne Johnson, appeals the Montgomery County Circuit Court’s
denial of his petition for post-conviction relief from his conviction of selling one-half gram
or more of cocaine, a Class B felony, and resulting twelve-year sentence. On appeal, the
Petitioner contends that he received the ineffective assistance of counsel. Based upon the
record and the parties’ briefs, we affirm the judgment of the post-conviction court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which JERRY L. S MITH and
J OHN E VERETT W ILLIAMS, JJ., joined.

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Antonio Dwayne Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Ahmed A. Safeeullah, Assistant
Attorney General; John Wesley Carney, Jr., District Attorney General; and John Finklea,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                  I. Factual Background

       We glean the following relevant facts from this court’s direct appeal opinion of the
Petitioner’s convictions: On August 22, 2008, Anthony Botts, a confidential informant (CI),
participated in a controlled drug buy with the Petitioner. State v. Antonio Dwayne Johnson,
No. M2010-02086-CCA-R3-CD, 2012 Tenn. Crim. App. LEXIS 348, at *2 (Nashville, May
25, 2012). At trial, Botts testified that before the buy, he telephoned the Petitioner and
arranged to buy crack cocaine from him. Id. About forty-five minutes later, Botts met the
Petitioner on Roberts Street in Clarksville. Id. at *3. The Petitioner approached Botts’s car,
and Botts gave him $175 in exchange for a Styrofoam box that contained crack cocaine. Id.
at **3-4. Botts admitted to the jury “that at the time of the transaction, he had been convicted
of a sexual offense and was on the TBI’s sex offender registry.” Id. at 4. Three officers from
the Clarksville Police Department’s Major Crimes Unit testified that they participated in the
buy and witnessed the transaction. See id. at **5-8. The jury convicted the Petitioner of
selling one-half gram or more of cocaine, a Class B felony, and the trial court sentenced him
as a multiple offender to twelve-years with a release eligibility of thirty-five percent. See id.
at **1-2.

        In the direct appeal of his conviction, the Petitioner argued that the evidence was
insufficient to support the conviction because Botts was not credible. Id. at *10. This court
rejected the Petitioner’s argument and affirmed the conviction. Id. at *15. The Petitioner
filed an application for permission to appeal to our supreme court, but that court denied his
application. State v. Antonio D. Johnson, No. M2010-02086-SC-R11-CD, 2012 Tenn.
LEXIS 705 (2012).

       Subsequently, the Petitioner filed a timely pro se petition for post-conviction relief,
arguing that he received the ineffective assistance of trial counsel. The post-conviction court
appointed counsel, and counsel filed an amended petition, claiming that the Petitioner
received the ineffective assistance of counsel because trial counsel failed to investigate the
case adequately, failed to file a motion to suppress, failed to ask the trial court to dismiss the
verdict as the thirteenth juror, and failed to investigate the Petitioner’s prior criminal
convictions in order to determine the Petitioner’s proper sentencing range.

       Relevant to this appeal, the Petitioner testified at the evidentiary hearing that at the
time of the hearing, he was serving sentences for three convictions. Trial counsel was
appointed from the public defender’s office to represent him in this case. The Petitioner was
on bond, and he and his wife met with counsel one time. The meeting lasted about twenty
minutes and occurred in counsel’s office. The Petitioner said that he and counsel did not
discuss trial strategy or witnesses during the meeting but that counsel advised him that the
State was offering to let him plead guilty in exchange for “ten years in the penitentiary and
ten years on paper.” The Petitioner said that he and his wife looked at each other and that
he told counsel, “I will take it.” However, counsel then told him that the State had
withdrawn the offer and that “the DA don’t want that no more, he wants twenty years in the
penitentiary.” The Petitioner said that only five to ten minutes had elapsed between the
State’s making and withdrawing the offer and that counsel did not offer an explanation for
the withdrawal. The Petitioner was going to schedule another appointment with counsel, but

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counsel told him that “we’ll meet in court.”

        The Petitioner testified that during his only meeting with trial counsel, he told counsel
to file a motion to suppress evidence but that counsel did not file any pretrial motions. He
said that counsel should have investigated whether Botts’s driver’s license was valid and
whether Botts’s credibility was “any good.” The Petitioner acknowledged that counsel cross-
examined Botts at trial about being on the sexual offender registry. However, counsel should
have questioned whether Botts, as a registered sex offender, was a reliable witness. Counsel
also should have challenged audio and video recordings introduced into evidence at trial
because the video showed only the “back of a black guy’s head” and the audio included only
Botts’s part of the conversation. The Petitioner said that he viewed the video and heard the
audio while he was in the county jail and that another attorney from the public defender’s
office provided him with the recordings.

        On cross-examination, the Petitioner testified that he would have taken the State’s
plea offer “because I would have been out of the penitentiary system right now . . . , and I
would have been with my family right now, if I took the ten/ten.” However, the Petitioner
would not have accepted an offer for twenty years in confinement. He acknowledged that
the evidence against him in this case was “incredibly strong.” The Petitioner said that when
he tried to make another appointment with counsel, counsel told him that counsel “would see
[him] in the courtroom tomorrow.”

        The Petitioner acknowledged that at trial, the State asked Botts if he was a convicted
sex offender and had been convicted of sexual battery. The State also asked Botts if he had
been paid for his work in this case. Trial counsel asked Botts on cross-examination about
his prior convictions, being on the sex offender registry, and being paid by the Major Crimes
Unit. Counsel also questioned Botts about his not paying income tax on the payments he
received from the Major Crimes Unit in order to show Botts was dishonest. The Petitioner
acknowledged that Botts’s audio-recorded telephone call to set up the drug buy was a one-
sided conversation but that the audio-recording of the drug buy was not. The Petitioner said
that he pled guilty to aggravated robbery when he was seventeen or eighteen years old
because he was guilty in that case but that “I am not going to plead guilty to nothing that I
did not do.” On redirect examination, the Petitioner testified that he did not plead guilty in
this case because he did not commit the crime.

       Clarksville Police Department Drug Agent Will Evans, who was a witness for the
State at the Petitioner’s trial, testified for the Petitioner that a portion of Botts’s telephone
conversation “only picked up Mr. Botts” but that “once there was actual contact made at the
vehicle on Roberts Street . . . both sides of the conversation was picked up.” He said he
thought a photograph taken during the drug buy showed the Petitioner’s face. Botts began

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working as a CI for the police department in 2007, and Agent Evans worked with him in five
or six buys involving three different buyers. Agent Evans said that Botts also worked for
Wolf Auto Sales and Auto Glass but acknowledged that Botts’s work for the police
department was a significant part of Botts’s income. Before trial, no one from the public
defender’s office interviewed Agent Evans. On cross-examination, Agent Evans testified
that someone from the police department was watching Botts at all times during Botts’s drug
buy with the Petitioner.

        The State did not present any witnesses. At the conclusion of the hearing, the post-
conviction court noted that at trial, trial counsel had “attacked” Botts with his prior
conviction involving sexual conduct and his being on the sex offender registry. The trial
court also noted that counsel “challenged” Botts with regard to his being a paid CI and failing
to report the payments to the Internal Revenue Service. The post-conviction court stated,
“This Court’s recollection of the trial and the cross-examination by [defense counsel] of Mr.
Botts is not the same as Mr. Johnson’s recollection.” The court stated that the Petitioner had
failed to show that trial counsel rendered deficient performance and that, in any event, due
to the strength of the evidence against the Petitioner at trial, he had failed to show prejudice.
The post-conviction court denied the petition for post-conviction relief.

                                         II. Analysis

       On appeal, the Petitioner contends that he received the ineffective assistance of trial
counsel because counsel never interviewed Agent Evans, had “sparse” meetings with him,
“put off” his attempts to meet with counsel, did not discuss witnesses or trial strategy with
him, and never filed motions to suppress as he requested. The State argues that the post-
conviction court properly denied the petition for post-conviction relief. We agree with the
State.

        To be successful in a claim for post-conviction relief, a petitioner must prove 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).

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       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).

        Initially, we note that the State failed to have trial counsel testify at the evidentiary
hearing. As this court has repeatedly stated, “We have observed on many occasions that
original counsel, when available, should always testify in a post-conviction proceeding when
there is an allegation that he was ineffective.” State v. Hopson, 589 S.W.2d 952, 954 (Tenn.
Crim. App. 1979). Moreover, “the state should present the attacked counsel to show what
occurred.” State v. Craven, 656 S.W.2d 872, 873 (Tenn. Crim. App. 1982); Garrett v. State,
530 S.W.2d 98, 99 (Tenn. Crim. App. 1975). The State should have called trial counsel, if
available, to testify about the Petitioner’s allegations.

       However, even without counsel’s testimony at the post-conviction evidentiary hearing
to contradict the Petitioner’s claims, the Petitioner has failed to establish by clear and
convincing evidence that counsel rendered deficient performance or that he was prejudiced
by any deficiency. Regarding counsel’s failure to interview Agent Evans, the Petitioner has
not alleged how interviewing the agent would have helped his case. We note that the

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Petitioner questioned Agent Evans at the evidentiary hearing and that the officer did not
provide any information that would have been beneficial to the Petitioner at trial. As for
counsel’s failure to meet adequately with the Petitioner or discuss witnesses or trial strategy
with him, the Petitioner has not named any additional witnesses that counsel could have
presented at trial or explained what trial strategy counsel should have used to change the
outcome of his case. We note that during the evidentiary hearing, the Petitioner testified that
counsel should have raised Botts’s credibility at trial. However, the Petitioner acknowledged
that the State questioned Botts about his prior sexual crime, his being on the sex offender
registry, and his being a paid CI. The Petitioner also acknowledged that trial counsel
questioned Botts about his being a registered sex offender and his failing to pay income taxes
on the payments he received from the police department. As the post-conviction court noted,
trial counsel attacked Botts’s credibility. As for counsel’s failure to file pretrial motions to
suppress evidence, the Petitioner has offered no legal basis for filing such motions.
Therefore, we agree with the post-conviction court that the Petitioner has failed to
demonstrate that counsel rendered deficient performance or that he was prejudiced by any
deficiency.

                                       III. Conclusion

       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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