        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs October 26, 2010

                KENNETH C. DAVIS v. STATE OF TENNESSEE

                Direct Appeal from the Circuit Court for Sevier County
                        No. 12973-II   Rex Henry Ogle, Judge


                No. E2010-00022-CCA-R3-PC - Filed January 27, 2011


The petitioner, Kenneth Clay Davis, appeals the Sevier County Circuit Court’s denial of his
petition for post-conviction relief. The petitioner was convicted of identity theft, a Class D
felony, and driving after being declared a habitual motor vehicle offender, a Class E felony,
and was sentenced, as a career offender, to an effective sentence of twelve years in the
Department of Correction. On appeal, the petitioner asserts that the denial of the petition was
error because: (1) his due process rights were violated by the State’s failure to prove beyond
a reasonable doubt that the offenses were committed before the return of the indictment; and
(2) he was denied his Sixth Amendment right to the effective assistance of counsel.
Following review of the record, we find no error in the denial and affirm the judgment of the
Sevier County Circuit Court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J ERRY L. S MITH,
J., joined. N ORMA M CG EE O GLE, J., not participating.

Rolfe A. Straussfogel, Sevierville, Tennessee, for the appellant, Kenneth C. Davis.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; James B. (Jimmy) Dunn, District Attorney General; and Johnnie D. Sellars,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                    Procedural History

       The facts underlying the petitioner’s convictions, as recited by this court on direct
appeal, are as follows:
        According to Officer [James] Roberts [of the Sevierville Police
Department], on March 22, 2005, he stopped a vehicle for driving sixty-two
miles per hour in a thirty-five mile per hour zone. Officer Roberts identified
the [petitioner] as the driver of the vehicle. When Officer Roberts approached
the vehicle, the [petitioner] identified himself as Mitchell L. Davis. Even
though the [petitioner] was unable to produce a driver’s license, he provided
Officer Roberts with a social security number as identification. The
[petitioner] did not appear to be under the influence of alcohol or drugs.

        Officer Roberts testified that the car also held a female passenger in the
front seat and a male passenger in the back seat. Officer Roberts stated that
Mitchell Davis’s driver’s license was revoked, but that he decided to issue the
[petitioner] a misdemeanor citation and release him.

        Sometimes later that morning, Officer Roberts responded to a call about
an incident at the Wal-Mart in Sevierville involving the [petitioner]. When
Officer Roberts arrived on the scene, he learned that the [petitioner], who had
previously identified himself as Mitchell Davis, was really Kenneth C. Davis.
A check of the [petitioner’s] driver’s license number revealed that the
[petitioner] was an habitual motor vehicle offender. Officer Roberts also
discovered that Mitchell Davis was the [petitioner’s] brother and that his social
security number was one digit different from the [petitioner’s]. When Officer
Roberts observed the [petitioner] at Wal-Mart, he appeared to be under the
influence of drugs.

       Officer Roberts explained that when the blue lights on his patrol car are
activated, an onboard video camera begins recording. When Officer Roberts
was preparing to testify in front of the grand jury, he discovered that the video
tape or video camera used during the [petitioner’s] stop for speeding
malfunctioned and that there was nothing on the tape. Officer Roberts
attempted to watch the tape on two different VCRs, but there was nothing on
the tape.

        The [petitioner] testified in his own defense at trial. According to the
[petitioner], Officer Roberts did not stop him for speeding, rather he and two
other people were in the car and were already stopped in a parking lot at the
Co-op when Officer Roberts approached the car and addressed him as
“Mitchell.” The [petitioner] stated that the officer asked him for his social
security number and birth date. The [petitioner] claimed that he told the
officer that he was illiterate and did not know his social security number. The

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       [petitioner] also claimed that he was sitting on the passenger side of the
       vehicle and never saw the officer activate his blue lights. The [petitioner]
       admitted that he was an habitual motor vehicle offender.

              At the conclusion of the trial, the jury found the [petitioner] guilty of
       identity theft and driving after having been declared an habitual motor vehicle
       offender. After a sentencing hearing, the trial court sentenced the [petitioner]
       to twelve years as a career offender for identity theft and six years as a career
       offender for driving in violation of the habitual motor vehicle offender act.
       The trial court ordered the sentences to run concurrently, for a total effective
       sentence of twelve years.

State v. Kenneth Clay Davis, No. E2006-01459-CCA-R3-CD (Tenn. Crim. App., at
Knoxville, Apr. 30, 2007), perm. app. denied (Tenn., Aug. 13, 2007). A panel of this court
affirmed the convictions of direct appeal. Id.

        Thereafter, the petitioner filed the instant petition for post-conviction relief, asserting
a myriad of complaints regarding trial counsel’s performance at trial and that the State failed
to prove that the charged offenses were committed before the return of the indictment. Post-
conviction counsel was appointed, but no amended petition was filed as counsel felt that the
petitioner’s pro se petition was more than adequate. Subsequently, a post-conviction hearing
was held at which arguments were presented and both the petitioner and trial counsel
testified. First, the petitioner’s appellate counsel presented argument with regard to the issue
of whether the State had violated the petitioner’s due process rights by failing to prove
beyond a reasonable doubt that the charged offenses were committed prior to the return of
the indictment. In the argument, counsel conceded that it was established that: (1) it was
clear from the transcript that the officer testified to the dates the offenses were committed;
(2) it was clear from the transcript that the trial made a statement on the record that the
indictments would be sent to the jury room during deliberations following a lunch break; and
(3) it was the general practice of the trial court to read the indictments to the jury. However,
counsel pointed out that the reading of the indictment did not appear in the transcript of the
trial. Moreover, he asserts that there was no definitive evidence that the indictment was
introduced at trial or that the date of the return of the indictment was presented to the jury.
The court ruled that the petitioner had failed to carry his burden of proof of the issue.

        Next, with regard to the issue of ineffective assistance of counsel, the petitioner was
called to testify. He testified that once his case “went to the grand jury it just went haywire
after that. I don’t understand. . . .” He related that while he was originally charged with
criminal impersonation and violation of the habitual motor vehicle offender statute, the grand
jury returned indictments for identity theft, false report, and violation of the habitual motor

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vehicle statute. Trial counsel was only appointed to represent the petitioner at arraignment.
Although he was not certain, the petitioner testified that he only remembered trial counsel
visiting him in the jail on two occasions. He acknowledged that trial counsel informed him
of the pending charges and explained them to him multiple times. However, he asserted that
he “couldn’t understand the identity theft” and informed trial counsel of this. Although he
acknowledged that trial counsel again attempted to explain it, he stated that he was never able
to understand it. The petitioner also testified that trial counsel “wanted [him] to plead
guilty,” but he refused.

        The petitioner further testified that there were things that he thought trial counsel
should have done but did not. He did not recall that trial counsel had raised an issue
regarding the videotape at a motion hearing or questioned the officer regarding discrepancies.
He further testified that he wanted trial counsel to talk to the two people who were with him
in the car at the time of the offenses as possible defense witnesses. He acknowledged that
he could not recall the female’s name and that she was in Florida. He also did not know
“Scotty’s” last name and thought he was “back in Texas.” Moreover, on cross-examination,
he specifically acknowledged that he did not have phone numbers or addresses for these
people prior to trial.

        The petitioner stated that he “don’t think [trial counsel] done her job.” When asked
to explain, the petitioner replied, “Because look where I’m at.” At this point, the post-
conviction court pointed out that a copy of a transcript of a motion hearing styled “Motion
Regarding Videotape” was part of the record. The court noted that trial counsel had called
the officer as a witness at that hearing and had “ask[ed] him all kinds of questions.” At that
time, the petitioner responded that he did not recall that specific hearing. The petitioner
testified that he “felt that [trial counsel] could have possibly done better if she had raised
more issues[.]” The petitioner further testified that he did not recall that the false report
charge had been dismissed due to trial counsel’s efforts at yet another motion hearing. When
asked if there was anything that trial counsel did at trial that he did not want her to do, the
petitioner responded, “Like I said, I can’t read or write. I don’t know if she done bad or
what. The only thing I know is when I get these papers and the gentlemen [incarcerated with
him] explains it to me. That’s all I know. I’m illiterate.”

       Next, trial counsel stated that it was fair to say that the trial was basically a swearing
match between the petitioner and the police officer at trial. She acknowledged that the
petitioner had told her about the two possible witnesses, but the petitioner was unable to
provide counsel with any specific information about them prior to trial. Through her own
investigation, she attempted to find the female and did, in fact, determine her name and that
she had been arrested on multiple occasions. However, based upon the information she
received, trial counsel determined that the woman “had apparently left the state prior to this

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case going to trial.” Trial counsel related that she was never able to ascertain the identity of
the male. She went on to note that the only other potential witness in the case was the
petitioner’s brother, whom she knew that the State intended to call. However, after speaking
with Mitchell Davis, trial counsel felt that his testimony would be detrimental to the
petitioner’ case. As such, she agreed to stipulate to the fact that Mitchell Davis was a real
person and what his social security number was, the facts the State were trying to adduce for
Davis as a witness.

        Trial counsel testified that she had two “lengthy” meetings with the petitioner at the
jail and spoke with him during courtroom breaks at several appearances prior to trial. She
also testified that she wrote him approximately fifteen letters in which she answered his
questions or communicated plea offers to him. Trial counsel recalled that, “well in advance”
of trial, the State filed a notice of intent to use the petitioner’s prior convictions. She noted
that she addressed the issue and that she managed to keep “out a good part of [the
petitioner’s] record,” although not all of it. Trial counsel went on to testify that the petitioner
insisted that he wanted to take the stand, so she was aware that his credibility would be at
issue. She discussed this with the petitioner prior to trial, and she decided, as a tactical
decision to ask the petitioner about his record on direct in order to lessen its impact with the
jury.

        Trial counsel also testified that she did not file a written request for lesser included
offenses, but the issue was discussed with the court on the day of trial. With regard to the
petitioner’s contention that she should have requested a charge on fraudulent use of a driver’s
license, she testified that it was not a lesser offense, as no driver’s license was used in this
case. She also recalled filing a number of pretrial motions, including a motion to dismiss the
indictment. Although the motion to dismiss with unsuccessful, trial counsel felt she had
extensively litigated the issue. She further recalled filing and “extensively litigating” a
pretrial motion regarding the police videotape. She also noted that the issue of the videotape
was raised in the motion for new trial and on direct appeal.

        In response to the claim that the petitioner felt she was unable to adequately represent
him because she was representing thirty-six other clients at the same time, trial counsel
testified that the number was probably closer to sixty. However, she testified that she did not
think her case load impaired her ability to represent the petitioner. She noted that “I think
he received better than adequate representation in this case. There was a lot of time and
effort that went into the research on these motions in preparation for trial.” She also testified
that she had brought up every pertinent pretrial issue that the petitioner had brought to her
attention.

       After hearing the evidence presented, the post-conviction court made findings of fact

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from the bench and issued a written order denying the petition. The petitioner has timely
appealed that denial.

                                           Analysis

        On appeal, the petitioner is challenging the denial of his petition for post-conviction
relief. He submits that the post-conviction court erred in its denial because the record
establishes that: (1) his due process rights were violated because the State failed to prove
beyond a reasonable doubt that the offenses charged were committed before the return of the
indictment as required by Tennessee Code Annotated section 39-11-201(a)(4); and (2) he was
denied the effective assistance of counsel at trial. To succeed on a challenge of ineffective
assistance of counsel, the petitioner bears the burden of establishing the allegations set forth
in his petition by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006). The
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 Strickland v. Washington, 466 U.S. 668, 687 (1984), the petitioner must establish (1)
deficient performance and (2) prejudice resulting from the deficiency. The petitioner is not
entitled to the benefit of hindsight, may not second-guess a reasonably based trial strategy,
and cannot criticize 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). 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).

        It is unnecessary for a court to address deficiency and prejudice in any particular
order, or even to address both if the petitioner makes an insufficient showing on either.
Strickland, 466 U.S. at 697. In order to establish prejudice, the petitioner must establish 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.” State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999)
(quoting Strickland, 466 U.S. at 694).

       The issues of deficient performance by counsel and possible prejudice to the defense
are mixed questions of law and fact. Id. at 461. “[A] trial court’s findings of fact underlying
a claim of ineffective assistance of counsel are reviewed on appeal 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)). However,
conclusions of law are reviewed under a purely de novo standard with no presumption that
the post-conviction court’s findings are correct. Id.

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I. Indictment

        The petitioner first asserts that he is entitled to post-conviction relief because the State
failed to prove beyond a reasonable doubt that the charged offenses were committed before
the return of the indictment, as required by Tennessee Code Annotated section 39-11-
201(a)(4) (2006). He asserts that this alleged failure by the State violates his right to due
process and is, therefore, cognizable in a post-conviction proceeding. The State responds
that the petitioner has waived this issue by his failure to raise it in the trial court or on direct
appeal. We agree with the State that, under the Post-Conviction Procedure Act, a ground for
relief is waived if the petitioner “failed to present it for determination in any proceeding
before a court of competent jurisdiction in which the ground could have been presented,”
subject to two narrow exceptions which are not applicable here. T.C.A. § 40-30-106(g)
(2006). We agree that this issue should have been raised in an earlier proceeding and is
technically waived. However, because the post-conviction court addressed the issue, we will
likewise briefly address the issue in the interest of completeness and finality.

        We agree with the petitioner that Tennessee Code Annotated section 39-11-201(a)(4)
requires that, in all crimes prosecuted, the State must prove beyond a reasonable doubt that
“[t]he offense was committed prior to the return of the formal charge.” The petitioner asserts
that there is no evidence in the record to conclusively establish that the State complied with
this requirement. He relies upon State v. Brown, 53 S.W.3d 264 (Tenn. Crim. App. 2000),
in which this court remanded a defendant’s case for new trial because, among other issues,
the State failed to prove that the two charged offenses had been committed before the return
of the indictment. In Brown, this court stated:

       While it seems obvious that no person would be indicted or otherwise formally
       charged with the commission of the offense of murder before the victim was
       actually killed, the legislature has chosen to require the State to prove that fact
       beyond a reasonable doubt. Our research has revealed no explicit rationale for
       such a rule, but we believe it may have arisen from the requirements
       concerning the content of indictments.

               The rue to be deduced from our cases is that, where there is no statute
       of limitations barring the offense, it is unnecessary to state the day, or even the
       year, but it is sufficient to aver generally that the offense was committed
       before the finding of the indictment; . . .

               ....

               Granted, this is an easy matter to prove. Generally, the first thing to

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       happen in a trial after the jury is sworn is that the indictment is read to the jury.
       . . . Our supreme court has stated that the reading of the indictment is an
       appropriate and proper procedure. . . . The indictment is not to be considered
       evidence of a defendant’s guilt, . . . but we do believe the indictment itself can
       establish the date upon which it was returned. Thus, the reading of the
       indictment to the jury, coupled with evidence of when the offense was
       committed, would establish that the offense was committed prior to the return
       of the indictment. Also, the State could merely ask an appropriate witness
       whether the actions of the defendant constituting the offense occurred before
       the defendant was charged with that offense. This would satisfy the
       requirements of the statute as well.

Brown, 53 S.W.3d at 278-80. The petitioner notes that, in Brown, there was no evidence that
the indictment was read to or shown to the jury and no witness was asked whether the offense
occurred prior to the return of the indictment. He likens Brown to his case by stating that,
while the officer testified regarding the date the offenses were committed, there is no
definitive evidence that the indictment was read to the jury. In denying relief on this issue,
the post-conviction found that the petitioner had failed to carry his burden of showing that
the State failed to comply with the requirements. The court acknowledged that the trial
transcript did not explicitly reflect that indictment had been read to the jury. The court noted,
however, a portion of the transcript which reflected the following:

              “This defendant is charged,” as I said, “on identity theft and driving
       after having been declared an habitual motor offender.” . . .

               Now, it said, “An orientation has been presented to the jury, then the
       following proceedings were had to wit.” And I certainly think part of that was
       left out [on the record]. I do think that. . . . [t]his Court is satisfied that it told
       them.

The court went on to note that it was the court’s practice to read the indictment following the
swearing in of the jury, a practice the court was legally required to do. Finally, the court
referenced yet another portion of the trial transcript, which included the following statement:
“At that time I will ask the bailiff to take the jury instructions, the indictments, and the
exhibits from the jury room for the jury to see.”

      We must agree with the post-conviction court and conclude that the petitioner failed
to show by clear and convincing evidence that the State failed to prove that the offenses
occurred prior to the return of the indictment. The petitioner’s reliance upon Brown is
misplaced as his case is distinguishable. Here the inferences to be gained from a reading of

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the transcripts and the comments made by the post-conviction court are that the indictment
was read to the jury, although not transcribed, and that the indictment was sent with the jury
during their deliberations. This is sufficient to establish the time frame of when the
indictment was returned to the jury. Moreover, as pointed out by the State, the officer was
asked “if the petitioner [was] taken to jail on the habitual motor vehicle offender violation
and criminal impersonation ‘which you subsequently charged him with.’” The officer
affirmatively responded to the question, which indicates that the petitioner was not charged
with the crime until after its commission. As such, we must conclude that the petitioner is
entitled to no relief.

II. Ineffective Assistance of Counsel

        Next, the petitioner contends that trial counsel provided ineffective representation
during the trial. In the petitioner’s brief, appellate counsel notes that the petitioner asserted
multiple allegations of ineffectiveness by trial counsel, specifically: (1) failure to investigate
and present witnesses to corroborate the petitioner’s version of events; (2) failure to form a
working relationship with the petitioner, prepare the petitioner for trial, and communicate
adequately with him; (3) failure to request a jury instruction of what the petitioner asserts is
a lesser included offense, namely, fraudulent use of a driver’s license; (4) mistakenly and
unnecessarily opening the door to the petitioner’s prior convictions; and (5) laboring under
a conflict of interest due to an excessive caseload which prevented trial counsel from
providing adequate representation. We take from appellate counsel’s statement that, “[i]n
all candor to this Court, it is difficult for counsel to make non [sic] colorable arguments for
several of these claims.” Specifically, he references that the proof presented at the hearing
basically negates the assertions with regard to the issue of trial counsel’s failure to call and
investigate certain witnesses, failure to request a lesser included offense instruction, and
opening the door to the petitioner’s criminal history. No arguments with regard to those
issues are made in the brief, and the post-conviction court found that the petitioner had failed
to establish the claims. We will not reevaluate the post-conviction court’s findings in these
circumstances, as the record more than sufficiently supports them.

       Further, with regard to the assertion that trial counsel provided ineffective assistance
because she was “overburdened” with other clients, appellate counsel also makes no
argument other than that discussed infra and citing to Rule 1.7 of the Professional Rules of
Conduct, which states that “a lawyer shall not represent a client if the representation of that
client may be materially limited by the lawyer’s responsibilities to another client. . . .” As
noted by the post-conviction court and acknowledged by trial counsel, the number of clients
asserted by the petitioner was probably lower than the number actually represented by trial
counsel at the time. However, trial counsel specifically testified that her representation of
the petitioner was not affected by the other concurrent representations. The post-conviction

                                               -9-
court obviously accredited that testimony, and it is not the province of this court to reweigh
such determinations. Furthermore, the petitioner put forth no proof as to how these multiple
representations affected trial counsel’s performance. The petitioner has simply failed to carry
his burden, as a mere assertion unsubstantiated by evidence does not entitle one to post-
conviction relief.

        Appellate counsel notes that the petitioner’s “strongest claim regarding ineffective
assistance of counsel lies in the fact that [the] [p]etitioner was uneducated, illiterate and did
not fully understand the nature of the charges against him, did not understand the range of
possible punishment as a Career Offender and did not understand the catastrophe that could
result from his demand to take the stand to testify.” The argument continues:

       Compounding these issues were the fact that his attorney, a public defender in
       a very busy judicial district, simply could not give the attention necessary to
       a defendant like [the petitioner.] It is not that the ineffectiveness arose from
       pure incompetence as it is clear from the record that trial counsel put up a
       valiant defense raising several pre and post trial motions and argued the case
       through appeal. Again, in all candor, this counsel cannot think of anything
       practice wise that trial counsel failed to do other than have the time to make
       sure [the petitioner] fully understood the import of his situation. Had counsel
       had the time to fully discuss this with [the] [p]etitioner as required by Rule 1.4
       of the Rules of Professional Conduct, he may have made a different decision,
       including accepting a plea offer instead of taking this matter to trial, which,
       needless to say, would have affected the outcome of the trial.

        From a reading of this argument, we conclude that, again, the petitioner is basically
asserting that trial counsel’s only failure in her representation was that she was too busy
representing other clients to adequately represent the petitioner who, because of his
intelligence level, required more time and explanation of relevant matters. As noted supra,
we have already concluded that the petitioner has failed to carry his burden with regard to
his claim that trial counsel provided deficient representation because she was representing
multiple clients at the time. Trial counsel specifically testified that, although she might have
been able to use “more bells and whistles” in representing the petitioner had her caseload
been smaller, she felt that she had more than adequately represented the petitioner,
specifically stating that a great deal of work had gone into her preparation and research for
the case.

        We must agree with the post-conviction court’s findings that trial counsel provided
representation in this case that “exceeded constitutional mandates.” The record reflects that
trial counsel met with the petitioner in two lengthy sessions, saw him at pretrial appearances

                                              -10-
for motions in the case, and wrote him approximately fifteen letters answering the
petitioner’s questions and conveying plea offers. The petitioner conceded that, on multiple
occasions, trial counsel attempted to clarify his understanding of the nature of the charges.
The record further reflects that trial counsel investigated the case and vigorously litigated
issues pretrial. The petitioner is not entitled to post-conviction relief in this case.

                                     CONCLUSION

       Based upon the foregoing, the denial of post-conviction relief is affirmed.




                                                   _________________________________
                                                   JOHN EVERETT WILLIAMS, JUDGE




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