        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs November 3, 2015

                DEANGELO WHITE v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Madison County
                     No. C1524     Roy B. Morgan, Jr., Judge




             No. W2015-00926-CCA-R3-PC - Filed December 23, 2015
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Petitioner, Deangelo White, was convicted of two counts of especially aggravated
kidnapping, two counts of aggravated robbery, one count of aggravated burglary, one
count of evading arrest, and one count of simple possession. He received an effective
sentence of forty years. The convictions were affirmed on direct appeal. Petitioner
sought post-conviction relief on the basis of ineffective assistance of counsel. After a
hearing, the post-conviction court denied relief. After a review, we determine that
Petitioner has failed to prove by clear and convincing evidence that he is entitled to post-
conviction relief. Accordingly, the judgment of the post-conviction court is affirmed.

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

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which JAMES CURWOOD
WITT, JR. and ALAN E. GLENN, JJ., joined.

Joshua B. Dougan, Jackson, Tennessee, for the petitioner, Deangelo White.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Jerry Woodall, District Attorney General; and Al Earls, Assistant
District Attorney General, for the respondent, State of Tennessee.


                                        OPINION

                                   Factual Background

      Petitioner, Grico Clark, and Jordan Curry were indicted on multiple offenses after
approaching Shannell Henning and Leon Jackson outside Ms. Henning‟s apartment in
Jackson, Tennessee. State v. Grico Clark, et al., No. W2012-02666-CCA-R3-CD, 2014
WL 505501, at *1 (Tenn. Crim. App. Feb. 7, 2014), perm. app. denied (Tenn. June 20,
2014). At least two of the men were armed with guns. They robbed the victims, ordered
them inside Ms. Henning‟s apartment, threatened their lives, took their money, assaulted
Mr. Jackson, and duct-taped him to a chair. Ms. Henning convinced the men that she had
more money in another apartment. Id. at *2. Clark and Petitioner took Ms. Henning to
another apartment at gunpoint, giving her five minutes to return with money before they
“shot up” the apartment. Once inside the apartment, Ms. Henning called the police. Id.
Clark, Petitioner, and Curry were eventually apprehended and identified by the victims.
After a jury trial, Petitioner was convicted of two counts of especially aggravated
kidnapping, two counts of aggravated robbery, one count of aggravated burglary, evading
arrest, and simple possession and sentenced to forty years. Id. His convictions and
sentence were affirmed on direct appeal. Id.

        Petitioner filed a timely pro se petition for post-conviction relief in which he
argued that trial counsel was: (1) ineffective in the plea negotiations; (2) ineffective by
advising Petitioner not to testify at trial in his own defense; (3) ineffective by failing to
challenge the Batson violation because the jury did not adequately represent Petitioner;
(4) ineffective by failing to challenge the lesser included offenses; and (5) ineffective for
failing to sever the cases from his codefendants. Counsel was appointed and an amended
petition was filed. In the amended petition, appointed counsel elaborated on Petitioner‟s
grounds for relief and raised an issue with regard to trial counsel‟s failure to attack
Petitioner‟s convictions on the basis of a violation of the constitutional protection against
double jeopardy.

                                  Post-conviction Hearing

        At the hearing, Petitioner testified that trial counsel initiated representation after
the case was in Circuit Court. According to Petitioner, trial counsel met with him one
time to discuss a plea offer of twenty-six years in incarceration. Petitioner was unclear
whether the twenty-six years would be required to be served at 100%. Petitioner first
testified that trial counsel encouraged him to accept the offer but that he wanted to
contest the kidnapping charge. Later, Petitioner claimed that trial counsel “slick-talked”
him into going to trial to attempt to obtain an acquittal on the kidnapping charge.
Petitioner also recalled an offer of twenty years on the day of trial. Petitioner rejected the
offer because he “wanted to try to beat the kidnapping.” He claimed, however, that trial
counsel “talked him in to [going to trial]” and that was as “specific as [trial counsel]
could be.”

       Trial counsel testified that he had been practicing law for twenty-six years,
focusing primarily on criminal law. Trial counsel was retained by Petitioner. They
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discussed all of the State‟s evidence after trial counsel reviewed the State‟s file through
the “open discovery” process. Trial counsel felt prepared for trial and was not surprised
by any of the State‟s proof. Trial counsel explained that he had a good working
relationship with co-defendants‟ counsel and that they all worked together at trial.

       Trial counsel remembered one plea offer of twenty years at 100%. He discussed
this offer with Petitioner at the jail. Trial counsel characterized the offer as “fair” and
described Petitioner as reluctant to accept the plea because “he didn‟t believe that the
nature of what happened warranted that type of sentence.” Trial counsel explained that
Petitioner rejected the plea offer. Trial counsel did not engage in further negotiations
with the State because he understood that to be their final offer.

       At the conclusion of the hearing, the post-conviction court commented that
Petitioner “actually testified he couldn‟t state any reason why he didn‟t get a fair trial.”
As relevant to this appeal, the post-conviction court found Petitioner “rejected the plea
offer because his goal was and his strategy in the case was to beat, he called it,
kidnapping.” The post-conviction court determined that Petitioner‟s dissatisfaction was
based on Petitioner‟s failed strategy rather than the influence of trial counsel, finding
Petitioner failed to show by clear and convincing evidence that he received ineffective
assistance of counsel. The post-conviction court entered a written order denying relief.
Petitioner filed a timely notice of appeal.

                                          Analysis

       On appeal from the denial of post-conviction relief, Petitioner argues that trial
counsel “erroneously coaxed [him] into rejecting a plea offer” and that this error
prejudiced his case. Petitioner abandons his remaining claims with regard to double
jeopardy, the Batson challenge, and severance on appeal. The State insists that the post-
conviction court properly denied relief.

       Post-conviction relief is available for any conviction or sentence that 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. In order to
prevail in a claim for post-conviction relief, a petitioner must prove his factual allegations
by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d
152, 156 (Tenn. 1999). “Evidence is clear and convincing when there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.”
Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).

       Both the Sixth Amendment to the Constitution of the United States and article I,
section 9 of the Tennessee Constitution guarantee the right of an accused to the effective
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assistance of counsel. In order to sustain a claim of ineffective assistance of counsel, a
petitioner must demonstrate that counsel‟s representation fell below the range of
competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1975). Under the two prong test established by Strickland v. Washington, 466
U.S. 668, 687 (1984), a petitioner must prove that counsel‟s performance was deficient
and that the deficiency prejudiced the defense. See Burnett v. State, 92 S.W.3d 403, 408
(Tenn. 2002). Because a petitioner must establish both elements in order to prevail on a
claim of ineffective assistance of counsel, “failure to prove either deficient performance
or resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley,
960 S.W.2d at 580. “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 v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466
U.S. at 697).

       The test for deficient performance is whether counsel‟s acts or omissions fell
below an objective standard of reasonableness under prevailing professional norms.
Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must evaluate the
questionable conduct from the attorney‟s perspective at the time, Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and “should indulge a strong presumption that counsel‟s
conduct falls within the wide range of reasonable professional assistance.” State v.
Burns, 6 S.W.3d 453, 462 (Tenn. 1999). A defendant in a criminal case is not entitled to
perfect representation, only constitutionally adequate representation. Denton v. State,
945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of
ineffective assistance of counsel, „we address not what is prudent or appropriate, but only
what is constitutionally compelled.‟” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting
United States v. Cronic, 466 U.S. 648, 665 n.38 (1984)). This Court will not use
hindsight to second-guess a reasonable trial strategy, Adkins v. State, 911 S.W.2d 334,
347 (Tenn. Crim. App. 1994), even if a different procedure or strategy might have
produced a different result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim.
App. 1980). “The fact that a particular strategy or tactic failed or hurt the defense does
not, standing alone, establish unreasonable representation.” House v. State, 44 S.W.3d
508, 515 (Tenn. 2001) (quoting Goad, 938 S.W.2d at 369). However, this deference to
the tactical decisions of trial counsel is dependent upon a showing that the decisions were
made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.
App. 1992).

        Even if a petitioner shows that counsel‟s representation was deficient, the
petitioner must also satisfy the prejudice prong of the Strickland test in order to obtain
relief. Prejudice is shown where “there is a reasonable probability that, but for counsel‟s
unprofessional errors, the result of the proceeding would have been different.” Burns, 6

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S.W.3d at 463 (quoting Strickland, 466 U.S. at 694). This reasonable probability must be
“sufficient to undermine confidence in the outcome.” Id.

        Whether a petitioner has been denied the effective assistance of counsel presents a
mixed question of law and fact. Burns, 6 S.W.3d at 461. This Court will review the
post-conviction court‟s findings of fact “under a de novo standard, accompanied with a
presumption that those findings are correct unless the preponderance of the evidence is
otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P.
13(d); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). This Court will not re-weigh
or re-evaluate the evidence presented or substitute our own inferences for those drawn by
the trial court. Henley, 960 S.W.2d at 579. Questions concerning witness credibility, the
weight and value to be given to testimony, and the factual issues raised by the evidence
are to be resolved by the post-conviction court. Momon, 18 S.W.3d at 156 (citing
Henley, 960 S.W.2d at 578). However, the post-conviction court‟s conclusions of law
and application of the law to the facts are reviewed under a purely de novo standard, with
no presumption of correctness. Fields, 40 S.W.3d at 458.

       In this case, Petitioner‟s main complaint about trial counsel is that he failed to
adequately advise him during the plea negotiations prior to trial. Petitioner‟s testimony at
the post-conviction hearing, however, was contradictory on this very issue. First, he
stated that he rejected the plea offer because he wanted to “beat” the charge of
kidnapping. Then, he claimed that trial counsel “slick-talked” him into giving up the plea
agreement and proceeding to trial. Petitioner did not name any particular action on the
part of trial counsel which indicated that his decision to reject the plea was involuntary.
Trial counsel, on the other hand, testified that he and Petitioner discussed the plea
agreement but that he ultimately left the decision to Petitioner. The post-conviction court
heard the testimony and determined as follows:

       [P]etitioner himself testified that the offers were communicated to him and
       rejected. Trial counsel testified that he spoke with [Petitioner] and
       conveyed all offers as well. [Petitioner] specifically stated that he wanted
       to beat the especially aggravated kidnapping charge. [Petitioner] made an
       informed choice to reject the State‟s plea offer and take[] his chances at
       trial. This was a trial strategy and it failed.

       The evidence does not preponderate against the judgment of the post-conviction
court. The post-conviction court implicitly ruled that trial counsel‟s testimony on the
matter was more credible than that of Petitioner. Witness credibility is left to the
determination of the post-conviction court. Momon, 18 S.W.3d at 156 (citing Henley,
960 S.W.2d at 578). Petitioner has failed to show clear and convincing evidence that he

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received ineffective assistance of counsel at trial and is, therefore, not entitled to post-
conviction relief. Accordingly, the judgment of the post-conviction court is affirmed.

                                        Conclusion

       For the foregoing reasons, the judgment of the post-conviction court is affirmed.



                                                  _________________________________
                                                  TIMOTHY L. EASTER, JUDGE




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