        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs March 6, 2013

              RODNEY McALISTER v. STATE OF TENNESSEE

                Appeal from the Circuit Court for Lauderdale County
                      No. 8506 Joseph H. Walker, III, Judge


                 No. W2012-01190-CCA-R3-PC - Filed May 22, 2013


The Petitioner, Rodney McAlister, appeals the Lauderdale County Circuit Court’s denial of
his petition for post-conviction relief from his 2009 conviction for vandalism of more than
$1000 but less than $10,000 and his five-year sentence. The Petitioner contends that he
received the ineffective assistance of counsel. We affirm the judgment of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J ERRY L. S MITH and
R OGER A. P AGE, JJ., joined.

Rebecca S. Mills, Ripley, Tennessee, for the appellant, Rodney McAlister.

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney
General; D. Michael Dunavant, District Attorney General; and Joni R. Livingston, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

       This case arises from the Petitioner’s destroying West Tennessee State Penitentiary
property during his 2008 imprisonment. This court summarized the facts of the case in the
appeal of the Petitioner’s conviction:

               The defendant, after kicking his cell door, managed to escape the cell
       and was free inside the pod. The defendant was seen smashing the cameras by
       the control room and proceeded to climb into the ceiling, after breaking several
       of the ceiling tiles. The defendant continued on his rampage, breaking another
       camera, knocking out lights, and breaking a sprinkler head. Officers in the pod
       ordered the defendant to come down from the ceiling, and he responded that
he would when he was finished. The defendant did eventually come down
from the ceiling, and, upon reaching the ground, he ran back into his cell. The
entire episode was captured on video.

       ....

       At the . . . trial, the defendant proceeded upon the theory that he had
committed the acts under duress or necessity, claiming that he was being
abused by the prison officers and was only trying to get the attention of
someone who could stop the treatment. The defendant testified and stated that
the problems began when he got into an argument with an officer at the prison.
He claimed that the officers then began “messing” with his food, sometimes
even depriving him of anything to eat. He testified that he would be given
food which had dirt, cleaning solvents, or pubic hairs in it. He related that he
went on a “hunger strike” to draw attention to the alleged abuse. The
defendant testified that he became weak from lack of food and that the officers
attempted to take him to the prison physician. When he refused to go, the
defendant related that the extraction team was called to remove him from his
cell. He alleged that on multiple occasions during these extractions, he was
beaten, dragged down stairs, and returned to his cell unconscious. He also
contended that he was denied privileges such as showers and recreation time
and that he was written up for infractions which he did not commit.

        According to the defendant, he wrote the warden on multiple occasions
concerning this abuse, but he received no aid. He stated that he feared for his
safety and came up with the idea to destroy property in order to force officials
to recognize his plight. He acknowledged that, prior to the incident, he
destroyed two cells for which he was now charged. He claimed that on the day
in question, the officer in the control room, who controlled the doors to the
cells, began taunting him that he could not get out. The defendant claimed that
this officer released the electronic lock and dared him to try to get out, despite
the fact that the deadbolt lock was still in place. The defendant acknowledged
that he then burst through the door, breaking the lock, and then committed the
acts of vandalism for which he was charged.

       ....

        The State called multiple officers to testify who were on duty when the
defendant committed his rampage. Each testified that when the defendant
burst from his cell, nothing in his demeanor indicated that he was afraid or had

                                       -2-
       been threatened in any way. Each of the officers also testified that they never
       witnessed or saw any abuse of the defendant, that his food was not tampered
       with, and that he was not denied privileges. Additionally, no officer was able
       to testify exactly how the defendant had gotten out of his cell. The control
       officer specifically testified that she did not release the lock for his door.

               The State also called the warden to testify at the defendant’s trial,
       although at the time of the incident he had been the deputy warden. He
       testified that he had received two letters from the defendant prior to this
       incident. In each of the letters, the defendant demanded that he be transferred
       to another prison, asserting that he wanted to be closer to Knoxville, and he set
       a deadline for the transfer to occur by December 1. The warden testified that
       he attempted to have the defendant transferred but was unable to find an
       institution willing to accept him. In the letters, the defendant also demanded
       that a disciplinary action be taken off his record because it was a “lie.” The
       warden further testified that neither letter mentioned any abuse or improper
       treatment at the hands of prison officials. The warden also testified that when
       he engaged the defendant in conversation in the pod, he did not recall any
       mention or allegations of problems with the defendant’s food.

State v. Rodney McAlister, No. W2010-00996-CCA-R3-CD, slip op. at 1-3 (Tenn. Crim.
App. June 7, 2011).

        At the post-conviction hearing, counsel testified that although he was retained to
represent the Petitioner at the trial, he was not retained to file a motion for a new trial and
was permitted to withdraw as counsel before the deadline to file the motion. He said he met
with the Petitioner twice for one to two hours at the prison to discuss the vandalism charge
and filing a lawsuit against the Tennessee Department of Correction. He denied requesting
the Petitioner’s medical and psychiatric records or requesting information about the
Petitioner’s medication. He denied that he and the Petitioner discussed his medications and
that he knew the Petitioner was prescribed Tegretol at the time of the incident. He agreed
the Petitioner had been in solitary confinement before the incident but did not recall the
Petitioner’s receiving treatment for self-mutilation. He said that presenting evidence of the
Petitioner’s head trauma, medications, and hospitalization would have been inconsistent with
the duress defense presented at the trial.

        Counsel testified that although he did not recall sharing the State’s discovery materials
with the Petitioner, his usual practice was to provide clients copies of discovery. He did not
recall the Petitioner’s asking him to have a locksmith examine the prison door that opened
to determine if Corporal Harbor opened the door or if it malfunctioned as the State claimed.

                                               -3-
He did not recall cross-examining a locksmith at the trial. He said the majority of letters
related to the Petitioner’s case came from the Petitioner’s mother. He did not recall the
Petitioner’s questioning Corporal Harbor’s character during the trial and said he did not
know that her employment was terminated due to a sexual relationship with an inmate.

       Counsel testified that he recalled the Petitioner’s alleging he was assaulted by officers
at the prison but that he did not recall the officers’ names. He said he evaluated the
allegation as part of the duress defense rather than as a ground to attack the officers’
credibility. He denied knowing that Officer Snow’s employment was terminated as a result
of “problems at the prison.” He denied receiving material related to the personnel files of
the correction officers. He denied that any information related to the correction officers’
employment would have changed the outcome of the trial because there was a video
recording of the Petitioner’s destroying prison property. He denied researching the
psychological impact of solitary confinement but said it was “elementary” that solitary
confinement had psychological consequences. He denied choosing not to address the solitary
confinement at the trial and said it was part of the duress defense. He said that he filed a
sentencing memorandum, that he thought he included the applicable mitigating factors, and
that he did not recall which mitigating factors were included.

        On cross-examination, counsel testified that he had practiced law for twenty-eight
years and that criminal defense had been fifty percent of his practice since 1990. He agreed
he relied on the information provided by his clients in preparing for a trial and said he did not
recall the Petitioner’s telling him about his medications. He agreed he raised necessity and
duress defenses at the trial. He agreed he called as witnesses three inmates from the prison.
He recalled locksmith Tommy Owen testifying that the cell door lock could be manipulated
into opening. He said that a letter written by the Petitioner to Staten Hidle was received as
an exhibit at the trial and that the Petitioner requested a transfer to another facility and
threatened “consequences” if not transferred. He agreed that one of the consequences of
which the Petitioner spoke was vandalism of prison property.

       Counsel testified that he and the Petitioner discussed possible defenses and strategies
and that the Petitioner agreed with the duress defense. He said the Petitioner appeared to
understand their conversations, the proceedings, and the charges against him. He agreed
information regarding the correction officers was presented though the affirmative defenses.
He acknowledged requesting a sentence concurrent with the sentence the Petitioner was
serving at the time of the incident. On redirect examination, counsel stated that he and the
Petitioner probably reviewed the State’s discovery material just before the jury was selected.




                                               -4-
        The Petitioner testified that he had a tenth-grade education, that he attended a “special
school” because of behavioral and learning disabilities, and that he and counsel discussed his
disabilities and self-mutilation. He said he told counsel about head trauma he suffered as a
result of a car accident and his treating physicians, but he did not know if he told counsel
where the surgeries were performed.

       The Petitioner testified that he and counsel met twice and that one of the meetings
occurred before the vandalism charge was filed. He said that he had been in solitary
confinement almost the entire time he had been housed at the prison. He said that a “steel
cell” was built for him and that he was released recently. He said he explained to counsel
how solitary confinement made him feel and how he was treated while there. He agreed he
had access to a psychiatrist and a counselor while in solitary confinement, but he did not
“consider her a real psychiatrist” because she only wanted to talk. He said that a counselor
came to see him but that the counselor “put his hands on” the Petitioner.

       The Petitioner testified that at the time of the hearing, he was taking half as much
Tegretol as he took at the time of the incident. He said that he suffered from a mood disorder
while he was on the full dose of Tegretol and that he explained to counsel how the
medication affected him. He said that he talked about Tegretol’s effect at the trial but that
the prosecutor and jury “chalked it up as really being nothing.”

        The Petitioner testified that he did not mention the solitary confinement at the trial and
that he did not know “to bring it up.” He said that he received counsel’s request for
discovery in the mail and that he first saw the State’s discovery package in court. He said
he knew there was a video recording of his actions but did not know the State had pictures
of his long hair and beard, which were the result of his not being permitted to shave or have
his hair cut. He said he did not know he could view the recording in prison. He said he did
not know of a letter he wrote to his girlfriend discussing his desire to stab Officer Snow, who
assaulted him. He said he told counsel about Officers Snow’s and Harbor’s character issues.
He said he communicated with counsel through his mother.

       The Petitioner testified that the locksmith who testified at the trial stated that the
Petitioner manipulated the lock on the cell door and was able to open the door at any time.
He said that during the trial, he told counsel that if the locksmith’s testimony were true, a
light would have been visible in the control room. He said he wanted counsel to ask the
locksmith several questions, but counsel did not. He said he broke things inside his cell to
obtain the warden’s attention. He said he wanted to talk to the warden about the correction
officers’ mistreating him. He said that the correction officers built the steel cell, welded
closed the buttons that dispensed water, forced him to drink from the toilet, and laughed at
him. He said he wrote the warden and did everything he could to stop the officers’ treatment.

                                               -5-
He said he attempted to testify about the officers’ assaulting him, but the State objected and
established that the Petitioner was not assaulted the day he vandalized prison property.

        The Petitioner testified that after the last correction officer was moved to a different
location, he did not have any more incidents at the prison. He said that after he vandalized
the property, he returned to his cell, and he denied attempting to hurt anyone. He said he
vandalized prison property for attention and hoped he would be moved. He stated that he
was unable to tell the jury he would have been required to place something in the lock to
prevent the door from locking and that it was impossible to have done so because his hands
were handcuffed behind his back and he was escorted by officers every time he was placed
in his cell. When asked why he was unable to tell the jury this, the Petitioner said counsel
told him that counsel was not a locksmith.

       On cross-examination, the Petitioner testified that he destroyed the prison property
intentionally and that his actions were necessary in order for prison officials to transfer him.
He agreed counsel raised a necessity defense at the trial but said the jury did not believe him
because it did not hear evidence of “the whole thing.” He said the jury did not hear evidence
“about that lock” or about the correction officer’s having sex with prison inmates. He
admitted that he called as witnesses three inmates and that evidence of his taking Tegretol
was presented at the trial.

        The trial court denied post-conviction relief and concluded that counsel did not
provide ineffective assistance. The court found that counsel investigated the Petitioner’s case
adequately and was not deficient in presenting the Petitioner’s duress and necessity defenses.
It found that the Petitioner failed to establish how his medical history would have aided his
defense. Regarding the Petitioner’s explanation for his vandalizing prison property, the court
stated that the jury rejected the necessity defense and that the Petitioner failed to show how
counsel should have presented additional factual information or that such information would
have been successful. The court noted that the Petitioner testified at the trial about many of
his current complaints. This appeal followed.

        The Petitioner contends that he was denied the effective assistance of counsel. He
argues that counsel (1) failed to provide the Petitioner with discovery materials, (2) failed to
investigate the State’s witnesses, (3) failed to question the State’s witnesses effectively, (4)
failed to explore and present evidence supporting duress and necessity, (5) failed to present
evidence of the Petitioner’s medical history, (6) failed to meet with the Petitioner adequately,
discuss trial strategy with the Petitioner, and prepare for the trial adequately, (7) failed to
present evidence at the sentencing hearing regarding the Petitioner’s mental illness, previous
head injury, and psychiatric medications, (8) failed to present evidence of the Petitioner’s
lengthy solitary confinement and the psychological impact of his confinement, (9) failed to

                                              -6-
file mitigating factors with the court and object to the State’s enhancement factors, (10)
failed to file a motion for a new trial and discuss with the Petitioner his not filing a motion,
and (11) failed to object to the trial court’s ordering consecutive sentencing. The State
responds that counsel provided the effective assistance of counsel and that the trial court
properly denied relief. We agree with the State.

        The burden in a post-conviction proceeding is on the petitioner to prove his grounds
for relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2012). On appeal, we
are bound by the trial court’s findings of fact unless we conclude that the evidence in the
record preponderates against those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn.
2001). Because they relate to mixed questions of law and fact, we review the trial court’s
conclusions as to whether counsel’s performance was deficient and whether that deficiency
was prejudicial under a de novo standard with no presumption of correctness. Id. at 457.
Post-conviction relief may only be given if a conviction or sentence is void or voidable
because of a violation of a constitutional right. T.C.A. § 40-30-103 (2012).

        Under the Sixth Amendment, when a claim of ineffective assistance of counsel is
made, the burden is on the Petitioner to show (1) that counsel’s performance was deficient
and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687
(1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). In other words, a showing
that counsel’s performance fell below a reasonable standard is not enough because the
Petitioner must also show that but for the substandard performance, there is “a reasonable
probability that . . . the result of the proceeding would have been different.” Strickland, 466
U.S. at 694. The Strickland standard has been applied to the right to counsel under article
I, section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn.
1989).

        A petitioner will only prevail on a claim of ineffective assistance of counsel after
satisfying both prongs of the Strickland test. Henley v. State, 960 S.W.2d 572, 580 (Tenn.
1997). The performance prong requires a petitioner raising a claim of ineffectiveness to
show that counsel’s representation fell below an objective standard of reasonableness or
“outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690.
The prejudice prong requires a petitioner to demonstrate that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. A reasonable probability means a “probability sufficient
to undermine confidence in the outcome.” Id.

       With regard to counsel’s failure to provide the Petitioner with discovery materials,
counsel testified that although he did not recall sharing the State’s discovery package with
the Petitioner, his usual practice was to provide his clients copies. He stated that he and the

                                              -7-
Petitioner probably reviewed the State’s discovery materials just before the trial. Likewise,
the Petitioner testified that he received counsel’s request for discovery in the mail and that
he reviewed the discovery materials before the trial. The Petitioner knew the State possessed
a video recording of his vandalizing prison property. We note the Petitioner testified at the
trial that he vandalized the property and that he acted under duress because of the treatment
he received from various correction officers. The Petitioner has failed to establish that he
was prejudiced by counsel’s failure to provide him the State’s discovery package earlier.

       With regard to counsel’s failure to investigate and question the State’s witnesses
effectively, we conclude that the Petitioner is not entitled to relief. Counsel knew of the
Petitioner’s allegations against the correction officers and the treatment the Petitioner
claimed he endured during his solitary confinement. Although counsel did not request the
officers’ personnel files, counsel evaluated the allegations as part of the duress defense rather
than as a means of impeaching the officers’ credibility. Counsel concluded that even if an
officer had a relationship with an inmate and the termination allegations were true, the
information would not have changed the outcome of the trial because the Petitioner’s
vandalizing prison property was recorded and played for the jury. In any event, counsel did
not believe impeaching the officers’ credibility would outweigh the recording showing the
Petitioner’s actions.

        With regard to the treatment the Petitioner allegedly endured by the correction
officers, the Petitioner testified at the trial that he was being abused by the officers and that
his vandalizing prison property was an attempt to get the warden’s attention. The Petitioner
testified about his arguing with an officer and the officers’ placing dirt, cleaning solutions,
and pubic hairs on his food, depriving him of food on occasion, assaulting him, and denying
him showers and recreation time. The Petitioner testified that he wrote the warden several
letters about this treatment, that he received no response from the warden, and that he
decided to vandalize prison property. We note that the warden’s trial testimony contradicted
the Petitioner’s testimony. The warden testified that none of the Petitioner’s letters
mentioned any mistreatment and that the Petitioner failed to mention his being mistreated
when they spoke in the prison pod. The jury credited the warden’s testimony at the trial, and
counsel presented evidence of the necessity and duress defenses. The Petitioner is not
entitled to relief.

       With regard to counsel’s failure to present evidence of the Petitioner’s medical history
and the effects of the lengthy solitary confinement, counsel and the Petitioner discussed trial
strategy during their two meetings at the prison, and the Petitioner agreed to the strategy and
defenses. They also communicated through the Petitioner’s mother. The Petitioner did not
discuss his medical history or mental health with counsel, and the Petitioner did not display
symptoms of mental illness. Counsel concluded that the Petitioner understood their

                                               -8-
conversations, the proceedings, and the charges against him. Although counsel knew the
Petitioner was in solitary confinement before the vandalism charge, he did not recall the
Petitioner’s receiving treatment for self-mutilation. Counsel testified that evidence of the
lengthy solitary confinement was included in the duress defense. Although presenting
evidence of the Petitioner’s head trauma, his medications, and his hospitalization might have
aided the duress and necessity defense, the Petitioner testified at the post-conviction hearing
that he discussed his medication at the trial but that the prosecutor and the jury “chalked it
up as really being nothing.” The Petitioner has failed to establish prejudice.

         With regard to counsel’s alleged failure to meet adequately with the Petitioner, discuss
trial strategy, and prepare for the trial adequately, we conclude that counsel was not deficient.
Counsel met with the Petitioner twice at the jail to discuss the vandalism charge and a lawsuit
against the Tennessee Department of Correction. Counsel and the Petitioner admitted that
they communicated through the Petitioner’s mother, and counsel stated that the majority of
the letters related to the vandalism case came from the Petitioner’s mother. The evidence
shows that counsel and the Petitioner discussed the necessity and duress defense, that the
Petitioner agreed to the defense strategy, and that counsel prepared for the trial accordingly.

        With regard to counsel’s failure to present evidence at the sentencing hearing related
to the Petitioner’s mood disorder, previous head injury, psychiatric medications, lengthy
solitary confinement, and the psychological impact of the solitary confinement, we conclude
that counsel was not deficient. The Petitioner testified that he discussed his medical history
and medication at the trial and that the jury and prosecutor “chalked it up as really being
nothing.” Evidence of the Petitioner’s solitary confinement was presented at the trial as part
of the duress and necessity defenses. No evidence was presented at the post-conviction
hearing showing how additional evidence would have changed the outcome of the trial or the
sentencing hearing. The jury was presented evidence related to the Petitioner’s mental
health, previous medical history, and solitary confinement.

        With regard to counsel’s failure to file mitigating factors with the court and to object
to the State’s enhancement factors, we conclude that counsel was not deficient. The record
shows that counsel filed a sentencing memorandum on November 5, 2009. Counsel argued
that mitigating factors (1), (2), and (12) applied. See T.C.A. §§ 40-35-113(1) (2010) (“The
defendant’s criminal conduct neither caused nor threatened serious bodily injury”); -113(2)
(“The defendant acted under strong provocation”), and -113(12) (“The defendant acted under
duress . . . , even though the duress . . . is not sufficient to constitute a defense to the crime”).

      The State argued that enhancement factors (1) and (13)(I) applied. See T.C.A. § 40-
35-114(1) (2010) (“The defendant has a previous history of criminal convictions or criminal
behavior, in addition to those necessary to establish the appropriate range”) and -114(13)(I)

                                                 -9-
(“At the time the felony was committed . . . the defendant [was] incarcerated in any penal
institution on any misdemeanor or felony charge or a misdemeanor or felony conviction”).
Counsel’s sentencing memorandum addressed enhancement factors (1), (6), and (13)(I).
Regarding the Petitioner’s criminal history, counsel argued that the Petitioner’s criminal
history was contained in the presentence report and that he did not challenge the information
in the report. Regarding factor (13)(I), counsel argued that it should carry minimal weight
because the affirmative defenses of duress and necessity arose within the prison setting.
Counsel argued that the vandalism would not have occurred had the correction officers
treated the Petitioner humanely and noted that the Petitioner never denied causing the
damages. Counsel also brought to the court’s attention that enhancement factor (6) applied.
See id. at §40-35-114(6) (“The . . . amount of damage to the property . . . was particularly
great.”). Counsel argued, though, that the jury verdict showed that the damage amount
ranged from $1000 to $10,000 and that the trial court should presume the lowest possible
amount and fix the damage amount at $1000. We conclude that counsel presented mitigating
factors for the court to consider in his sentencing memorandum and that he argued against
the State’s requested enhancement factors. The Petitioner is not entitled to relief.

       With regard to counsel’s failure to file a motion for a new trial and discuss with the
Petitioner his not filing a motion, we conclude that the Petitioner is not entitled to relief.
Counsel testified that he was retained to represent the Petitioner at the trial and at the
sentencing hearing and was not retained to file a motion for a new trial. The appellate record
of the Petitioner’s conviction shows that the sentencing hearing was held on December 18,
2009, and that counsel filed a notice of withdrawal on December 22, stating that his
representation of the Petitioner ended with the conclusion of the sentencing hearing. This
record contains no additional information regarding counsel’s withdrawal. On February 17,
2010, the Petitioner filed a pro se motion for appointment of counsel to file a belated direct
appeal, alleging that counsel failed to file a motion for a new trial “to raise issues of errors
made by the trial court at trial or at sentencing or errors made by the state at trial or
sentencing.” The trial court granted the Petitioner’s motion.

        Although counsel testified at the post-conviction hearing that the trial court permitted
counsel to withdraw before the deadline to file the motion, no evidence exists showing why
counsel was permitted to withdraw before filing a motion for a new trial or why the court
failed to appoint subsequent counsel for filing the motion. Also, no evidence was presented
showing whether counsel and the Petitioner discussed the parameters of counsel’s
representation or whether counsel told the Petitioner about the importance of filing the
motion. These questions were not asked of counsel at the hearing. On appeal, the Petitioner
only challenged the sufficiency of the evidence, arguing the State failed to negate the
necessity and duress defenses. At the post-conviction hearing, the Petitioner failed to show
the issues he would have presented on appeal had counsel filed a timely motion for a new

                                              -10-
trial. See Wallace v. State, 121 S.W.3d 652, 659 (Tenn. 2003) (stating that a petitioner “must
establish that he or she intended to file a motion for new trial and that but for the deficient
representation of counsel, a motion for new trial would have been filed raising issues in
addition to sufficiency of the evidence”).

       With regard to counsel’s failure to object to the trial court’s ordering consecutive
sentencing, we conclude that the Petitioner is not entitled to relief. The Petitioner asserts that
the court erred by ordering the sentence to be served consecutively to the effective ten-year
sentence he was already serving as a result of multiple convictions in Knox County. He also
asserts that the court violated State v. Wilkerson, 905 S.W.3d 933 (Tenn. 1995), by not
finding that consecutive sentencing was reasonably related to the severity of the offenses and
necessary to protect the public from further criminal conduct.

       At the hearing, the Petitioner did not present any evidence of counsel’s alleged
ineffectiveness other than counsel’s filing a sentencing memorandum and did not offer the
sentencing hearing transcript as an exhibit. In any event, a transcript of the sentencing
hearing was included in the appellate record of the Petitioner’s conviction.

       At the sentencing hearing, the Petitioner testified that he never denied vandalizing
prison property and that he took responsibility for his actions. He said no one was injured
during the incident. He said that when he left his cell, he did not approach the guard but
vandalized the property he wanted to destroy and returned to his cell. He admitted he had
an anger management problem. He said that after the trial, the medical staff stopped
providing his medication around November 15, 2009, that he broke some items, and that he
spit on the guards. He blamed his most recent behavior on his medication. He said taking
Tegretol twice daily stabilized his mood. He said that although he was taking his medication
again, he was not yet taking a full dose. He said that he believed his anger issue would
resolve itself with a full dose of Tegretol.

       The Petitioner testified that although he should not have destroyed prison property,
he knew what he was doing and that he acted out of necessity. He said he was scared
because he was beaten several times, starved, given contaminated food, and dragged. He
requested leniency.

        On cross-examination, the Petitioner testified that he was taking Tegretol at the time
of the incident but that it was a low dose. He agreed that he blamed medication for his most
recent outburst. He said that he destroyed the property because he had an anger management
problem, not simply because he did not get his way. He admitted that he had an attitude
problem and that although he chose to act on his anger, he snapped. He said, though, that his
destroying prison property was more than his snapping. He said that he knew what he was

                                              -11-
doing during his most recent outburst but that he did not think about the consequences
because he “tripped out.”

        Although the presentence report was not included in the appellate record of the
conviction, the trial court stated that it had received and reviewed the report and found that
the Defendant was a multiple offender based on his prior convictions. The court found that
mitigating factor (1) applied. See T.C.A. § 40-35-113(1) (“The defendant’s criminal conduct
neither caused nor threatened serious bodily injury”). The court found that enhancement
factor (1) applied. See T.C.A. § 40-35-114(1) (“The defendant has a previous history of
criminal convictions or criminal behavior, in addition to those necessary to establish the
appropriate range”). The court found that the enhancement factor outweighed the mitigating
factor and sentenced the Petitioner to five years. The court found that the Petitioner was
incarcerated at the time of the offenses and that he was an offender whose record of criminal
activity was extensive. The court ordered consecutive sentences.

        The determination of concurrent or consecutive sentences is a matter left to the
discretion of the trial court and should not be disturbed on appeal absent an abuse of
discretion. State v. Blouvet, 965 S.W.2d 489, 495 (Tenn. Crim. App. 1997). Consecutive
sentencing is guided by Tennessee Code Annotated section 40-35-115(b) (2010), which
states, in pertinent part, that the court may order sentences to run consecutively if it finds by
a preponderance of the evidence that “the defendant is an offender whose record of criminal
activity is extensive.” T.C.A. § 40-35-115(b)(2).

        Our supreme court concluded that when the imposition of consecutive sentences is
based on the trial court’s finding the defendant to be a dangerous offender, the court must
also find “that an extended sentence is necessary to protect the public against further criminal
conduct by the defendant and that the consecutive sentences must reasonably relate to the
severity of the offenses committed.” State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995);
see State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999).

        The trial court ordered consecutive sentences because the Petitioner had an extensive
history of criminal activity and was incarcerated at the time of the offense. Although the
presentence report was not included in the record, no evidence exists contradicting the
court’s factual findings. Further, the court did not order consecutive sentences based on
Wilkerson and was not required to find that consecutive sentences were “necessary to protect
the public against further criminal conduct by the defendant” and were “reasonably relate[d]
to the severity of the offenses committed.” Wilkerson, 905 S.W.2d at 939.




                                              -12-
       We conclude that counsel was not deficient by failing to object to the trial court’s
ordering consecutive sentencing. The court properly imposed consecutive sentences and was
not required to make findings pursuant to Wilkerson. The Petitioner testified at the
sentencing hearing about his medication and its effect on his mood, his anger management
problems, the reason for his destroying prison property, and the treatment he claimed to have
endured by the correction officers. The trial court ordered consecutive sentences based on
the Petitioner’s previous convictions, and nothing in the record contradicts the court’s
findings. We conclude that counsel’s performance at the sentencing hearing was not
deficient and that the Petitioner is not entitled to relief.

        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.




                                           ____________________________________
                                           JOSEPH M. TIPTON, PRESIDING JUDGE




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