        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs June 18, 2013

       BRADLEY MITCHELL WEST, JR. v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Bedford County
                         No. 17409    F. Lee Russell, Judge


              No. M2012-02324-CCA-R3-PC - Filed September 27, 2013


The Petitioner, Bradley Mitchell West, Jr., appeals as of right from the Bedford County
Circuit Court’s denial of his petition for post-conviction relief. The Petitioner contends that
he received ineffective assistance of counsel because trial counsel failed to locate and
interview a potential witness. Discerning no error, we affirm the judgment of the post-
conviction court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which N ORMA M CG EE O GLE
and A LAN E. G LENN, JJ., joined.

Christopher P. Westmoreland, Shelbyville, Tennessee, for the appellant, Bradley Mitchell
West, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel;
Robert James Carter, District Attorney General; and Richard A. Cawley, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

        The Petitioner has failed to include a copy of his judgment of conviction or a
transcript of his guilty plea submission hearing in the record for this appeal. However, it
appears from the record that in May 2011 the Petitioner pled guilty to one count of
aggravated burglary and was sentenced to four years as a Range I, standard offender. The
factual basis for the Petitioner’s guilty plea was that he was seen by his great-aunt using a
stick to open the latch of a door on his grandmother’s screened-in porch. Once inside the
porch, the Petitioner attempted to disable the home’s security alarm, but “he didn’t know the
code and couldn’t disable the alarm.” The Petitioner then tried to open a window and enter
his grandmother’s house. The Petitioner’s great-aunt called the police, and when a police
officer arrived, the Petitioner “took off running from the house” and was apprehended at a
neighbor’s house.

       The Petitioner’s grandmother, Veda Reed, testified at the post-conviction hearing that
she was not at her house at the time of the offense but that she did not believe that the
Petitioner had burglarized her home because her doors were locked and her security alarm
was still armed when she returned home that day. Ms. Reed also testified that she never
locked the door on her screened-in porch and that anyone could walk into the screened-in
porch and knock on her front door. Ms. Reed further testified that she never spoke to trial
counsel or anyone from trial counsel’s office about the Petitioner’s case. Ms. Reed originally
claimed that she did not speak to the police about the offense either, but later admitted on
cross-examination that she had called the police station and spoke to a police officer about
what had occurred that day.

        Ms. Reed testified on cross-examination that the Petitioner had been living with her,
but she had kicked him out of the house a few weeks before this offense because she had
caught him in her bedroom going through her dresser drawers and “stealing” from her. On
the day this offense occurred, the Petitioner had come to Ms. Reed’s house “to pick up some
clothing,” and she caught him going through her garage. Ms. Reed testified that she told him
to leave the house again. Ms. Reed had a doctor’s appointment later that day, and she was
afraid that the Petitioner would come back to her house. Ms. Reed testified that she thought
the Petitioner “just wanted to stay in [her] garage,” but she asked the Petitioner’s great-aunt
to stay and watch the house while she was gone. The Petitioner’s great-aunt had been sitting
in Ms. Reed’s living room with Ms. Reed’s “gun in her lap” when she saw the Petitioner and
called Ms. Reed. Ms. Reed testified that she was at the doctor’s office when the Petitioner’s
great-aunt called her and that she told her to call the police.

       Trial counsel testified at the post-conviction hearing that he never spoke to Ms. Reed
and never had his investigator speak to Ms. Reed because she “wasn’t present when the
alleged burglary occurred.” Instead, trial counsel had his investigator interview the
Petitioner’s great-aunt because she had been “sitting in the house” and “looking out the
window” when she saw the Petitioner use “a stick to open the latch on [the] door” to the
screened-in porch. Trial counsel testified that the Petitioner’s great-aunt had given the police
“a very detailed version of the events of that day” and that he did not believe the Petitioner
had “a defense in this case.” Trial counsel further testified that the Petitioner “never denied”
that he used a stick to open the latch to the door on the screened-in porch. Trial counsel
concluded that he did not believe Ms. Reed’s testimony would have been useful at trial or
would have provided the Petitioner with a defense to the aggravated burglary charge.



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        At the conclusion of the hearing, the post-conviction court dismissed the petition. The
post-conviction court concluded that trial counsel was not ineffective for failing to interview
Ms. Reed. The post-conviction court found that Ms. Reed was not a credible witness and
that she “was clearly trying to assist her grandson.” The post-conviction court also found that
there was no evidence that the Petitioner had asked trial counsel to interview Ms. Reed or
that the Petitioner would have insisted on going to trial “if he had known what his
grandmother’s testimony would” have been. The post-conviction court noted that the
Petitioner’s main contention seemed to be that he could not have committed aggravated
burglary because he never entered Ms. Reed’s house. However, the trial court pointed out
that “habitation” was defined as including “each structure appurtenant to or connected with”
the home. See Tenn. Code Ann. § 39-14-401(1)(C).

         On appeal, the Petitioner contends that the post-conviction court erred in dismissing
his petition for post-conviction relief. The Petitioner argues that his guilty plea was not
voluntarily entered into because he was unaware of Ms. Reed’s “exculpatory testimony” due
to trial counsel’s ineffective assistance in failing to interview Ms. Reed or “attempt to
discover [her] testimony.” The State responds that there was no evidence that the Petitioner
would have gone trial had he been aware of Ms. Reed’s potential testimony and that Ms.
Reed’s potential testimony would not have been favorable or material to the Petitioner’s case
at trial.

        The burden in a post-conviction proceeding is on the petitioner to prove his
allegations of fact supporting his grounds for relief by clear and convincing evidence. Tenn.
Code Ann. § 40-30-110(f); see Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009).
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 (Tenn. 2001). Additionally, “questions concerning the credibility of the witnesses, the
weight and value to be given their testimony, and the factual issues raised by the evidence
are to be resolved” by the post-conviction court. Id. Because they relate to mixed questions
of law and fact, we review the post-conviction 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.

       Under the Sixth Amendment to the United States Constitution, 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 falls below a reasonable
standard is not enough; rather, the petitioner must also show that but for the substandard
performance, “the result of the proceeding would have been different.” Strickland, 466 U.S.

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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). In the context of a guilty plea, like the present case, the effective assistance of
counsel is relevant only to the extent that it affects the voluntariness of the plea. Therefore,
to satisfy the second prong of Strickland, the petitioner must show that “there is a reasonable
probability that, but for counsel’s errors, he would not have [pled] guilty and would have
insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); see also Walton v. State,
966 S.W.2d 54, 55 (Tenn. Crim. App. 1997).

       Here, there is no evidence that the Petitioner would not have pled guilty and insisted
on going to trial had trial counsel interviewed Ms. Reed. Ms. Reed was not present at the
time of the offense, and the post-conviction court found her testimony not to be credible.
Instead, trial counsel’s investigator interviewed the Petitioner’s great-aunt who witnessed the
Petitioner open the latch on the door with a stick, enter the screened-in porch, and then
attempt to enter the house by trying to disarm the alarm system and open a window. The
Petitioner was apprehended by the police after fleeing from Ms. Reed’s house. Based upon
the foregoing, we conclude that the post-conviction court did not err in dismissing the
petition. Accordingly, we affirm the judgment of the post-conviction court.

       Upon consideration of the foregoing and the record as a whole, the judgment of the
post-conviction court is affirmed.




                                                    _________________________________
                                                    D. KELLY THOMAS, JR., JUDGE




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