        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                  Assigned on Briefs at Knoxville August 16, 2016

                  LUIS GUILLEN v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                      No. 10-04491      Lee V. Coffee, Judge



             No. W2016-00198-CCA-R3-PC - Filed November 22, 2016



The Petitioner, Luis Guillen, appeals the Shelby County Criminal Court‟s denial of his
petition for post-conviction relief from his convictions of one count of aggravated rape
and three counts of aggravated kidnapping and resulting effective thirty-five-year
sentence. On appeal, the Petitioner contends that he received the ineffective assistance of
counsel. Based upon the record and the parties‟ briefs, we affirm the judgment of the
post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and D. KELLY THOMAS, JR., JJ., joined.

Genna M. Lutz, Memphis, Tennessee, for the appellant, Luis Guillen.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Jose Leon, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                I. Factual Background

        In July 2010, the Shelby County Grand Jury indicted the Petitioner for one count
of aggravated rape, a Class A felony, and three counts of aggravated kidnapping, a Class
B felony, for events that occurred between December 26, 2009, and December 31, 2009.
In January 2012, a jury convicted the Petitioner as charged. After a sentencing hearing,
the trial court merged the aggravated kidnapping convictions and sentenced him as a
Range I, violent offender to consecutive sentences of twenty-five years for aggravated
rape and ten years for aggravated kidnapping.

       On direct appeal of his convictions to this court, the Petitioner argued that the
evidence was insufficient to support the convictions and that his effective thirty-five-year
sentence was excessive. State v. Luis Guillen, No. W2012-00826-CCA-R3-CD, 2013
WL 4007532, at *1 (Tenn. Crim. App. at Jackson, Aug. 2, 2013), perm. to appeal denied,
(Tenn. Dec. 10, 2013). This court concluded that the evidence was sufficient, stating as
follows:

                      Evidence sufficient to support the jury‟s conclusion
              with respect [to] each of these elements [of aggravated rape]
              is contained in the record. The victim testified that the
              defendant attacked her and forced intercourse on her both
              over her resistance and against her will, notwithstanding her
              repeated pleas that she did not want to have sex. The victim
              testified that she was repeatedly beaten by the defendant
              during the assault and that she was injured as a result. The
              victim‟s testimony concerning her injuries was supported by
              numerous photographs presented at trial as well as by the
              testimony of law enforcement officers and medical personnel
              who treated her after the attack.

                     ....

                     Evidence sufficient to support the jury‟s conclusion
              with respect each of these elements [of aggravated
              kidnapping also] is contained in the record. The State
              presented considerable evidence at trial the defendant
              confined the victim at his residence for a period of nearly four
              days against her will. In addition to the victim‟s direct
              testimony on the subject, her testimony on these issues was
              supported by considerable circumstantial evidence, including
              the victim‟s friend‟s testimony concerning the unusual length
              of time that she was gone, her unusual behavior during
              conversations that they had with her on the phone, and the
              fear and anxiety that she exhibited immediately upon being
              returned home.

                    With respect to the remaining elements of aggravated
              kidnapping, the State presented sufficient evidence to support
                                            -2-
              the jury‟s finding that the victim was injured during her
              period of confinement for the reasons we have previously
              summarized. The jury could also reasonably infer, based on
              the victim‟s testimony and that of other witnesses at trial, that
              the purpose of this confinement was to facilitate the rape and
              to prevent the victim from reporting it afterward.

Id. at *13. In addition, this court concluded that the trial court properly sentenced the
Petitioner. Id. at *14.

        After our supreme court denied the Petitioner‟s application for permission to
appeal, he filed a timely pro se petition for post-conviction relief alleging, in pertinent
part, that he received the ineffective assistance of counsel. The post-conviction court
appointed counsel, and counsel filed an amended petition.

       Relevant to this appeal, the Petitioner alleged in the amended petition that trial
counsel was ineffective for failing to request adequate and appropriate jury instructions.
At the evidentiary hearing, trial counsel testified that he received discovery, which
included the offense report, police reports, and the victim‟s statement, and that he went
over the discovery with the Petitioner. Spanish was the Petitioner‟s native language, but
he spoke “some English.” Counsel‟s secretary also spoke Spanish, and she would
translate over the telephone for counsel when counsel met with the Petitioner. The State
offered to let the Petitioner plead guilty to rape, a Class B felony, in exchange for an
eight-year sentence to be served at eighty-five-percent release eligibility. However, the
Petitioner “flatly refused” the offer.

       Trial counsel testified that he advised the Petitioner not to testify at trial because
the Petitioner was “cocky and arrogant” at times and had two large tattoos in the shape of
teardrops under his eyes. Counsel was concerned that the State would question the
Petitioner about the tattoos and his gang involvement in Mexico. Counsel also thought
the Petitioner would not make a good witness, explaining as follows:

              [O]ur theory of the case was that he and [the victim] were
              dating, that they had gone to dinner, that they returned to his
              apartment and that they had sexual intercourse after they
              returned to his apartment, that she received a text message
              from a former boyfriend, and Mr. Guillen saw this text
              message, became angry and then beat her but did not have
              any further relations with [her].



                                            -3-
                     In speaking with Mr. Guillen, one of the versions he
              told us was that all of that had certainly happened, but after he
              severely beat her, then they had further relations, and in his
              mind, those further relations after the beating were
              consensual, and I could not ever get him to understand that a
              woman who was severely beaten and had a broken nose and a
              fractured skull could [not] consent to relations or would [not]
              want to have sex at that point, and I was afraid that that
              version would come out.

Despite counsel‟s advice, the Petitioner chose to testify.

        Trial counsel testified that he also represented the Petitioner on direct appeal of the
Petitioner‟s convictions and that he was aware of our supreme court‟s opinion in State v.
White. He said he did not “recall the rationale” for not raising a White issue in the
Petitioner‟s motion for new trial but that “I believe it had to do with the Court‟s holding
that retroactive application of White was not required.” He also stated, “I should have
[raised the issue], in retrospect.”

       On cross-examination, trial counsel testified that he became licensed to practice
law in October 1997 and had been practicing law eighteen years at the time of the post-
conviction evidentiary hearing. He practiced only criminal law. He said that he did not
understand how the jury convicted the Petitioner of aggravated kidnapping “given the
numerous opportunities that [the victim] had to just walk out of the apartment” and that
the Petitioner thought the Petitioner was guilty of assault and false imprisonment.
Regarding counsel‟s failure to raise a White issue in the motion for new trial or on direct
appeal of the Petitioner‟s convictions, counsel stated, “My understanding was the
application was not retroactive.”

       On redirect examination, trial counsel testified that “the facts of the case were that
the rape happened one day and the confinement went on for several days.” The State‟s
original plea offer was a guilty plea to rape in exchange for an eighteen-year sentence to
be served at eighty-five percent release eligibility. Although counsel negotiated the offer
down to eight years, the Petitioner told counsel that “a plea to a felony was out of the
question.”

       The Petitioner testified through an interpreter that trial counsel met with him in jail
twice. They also met in the “lock-up area” when the Petitioner came to court. The
Petitioner said he and counsel did not have much time to discuss his case because counsel
“was busy in Court and they were calling him.” The Petitioner had discovery materials,
but trial counsel never discussed the discovery materials with him. Counsel told the
                                             -4-
Petitioner about a fifteen-year plea offer from the State to be served at eighty-five percent
release eligibility.

        The Petitioner testified that he and counsel discussed the Petitioner‟s testifying at
trial. However, they did not discuss his testifying until the day he was scheduled to
testify, and the Petitioner had “[f]ifteen minutes, thirty minutes, something like that” to
decide. The Petitioner asked counsel “what chance did [he] have to win” if he testified.
Counsel told the Petitioner that the victim‟s testimony was inconsistent, that the
Petitioner had a “fifty-fifty chance of winning or losing,” and that counsel was concerned
about the jury‟s seeing the Petitioner‟s tattoos.

       On cross-examination, the Petitioner testified that he and trial counsel got along
well for the “few times” he saw counsel. Counsel never brought his Spanish-speaking
assistant to meet with the Petitioner, but the Petitioner spoke with her “for a moment” by
telephone. The Petitioner acknowledged that the State‟s original plea offer may have
been for eighteen years and said, “I don‟t remember.” He said he did not know about our
supreme court‟s opinion in State v. White and never asked that counsel raise a White
issue.

       At the conclusion of the hearing, the post-conviction court noted that the trial court
read the pattern jury instructions in effect at the time of trial, which did not include a
White instruction. The post-conviction court then stated that, in any event,

              [t]here is absolutely no way that these facts would support a
              contention that this is plain error in this case, . . . and what the
              trial record shows is that this is an offense that took place
              over four days. This young woman was beaten, she was held
              hostage, she was afraid to call for help. When she talked to
              someone on the phone, Mr. Guillen was there with her all the
              time monitoring exactly what was being said. When he was
              not there, she did not have use of her cell phone. And this is a
              situation where she‟s held hostage, beaten for four days, and
              the kidnapping, the confinement in this case, is not incidental.

The court noted that this court could have addressed the issue as plain error in its direct
appeal opinion of the Petitioner‟s convictions but chose not to do so. The post-conviction
court found that the Petitioner was not prejudiced by counsel‟s failure to raise the White
issue and that he was not entitled to relief.

                                        II. Analysis

                                              -5-
        On appeal, the Petitioner maintains that he received the ineffective assistance of
counsel because trial counsel failed to argue in the motion for new trial or on direct
appeal of the Petitioner‟s convictions that the trial court erred by failing to instruct the
jury pursuant to State v. White. He argues that a White instruction was required because
“the proof in his case could have been interpreted in different ways” and, therefore, the
jury should have decided whether his removal or confinement of the victim was
essentially incidental to the accompanying offense of aggravated rape. The State argues
that the Petitioner is not entitled to relief. We agree with the State.

        To be successful in a claim for post-conviction relief, a petitioner must prove the
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “„Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.‟” State v. Holder, 15 S.W.3d 905, 911 (Tenn.
Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.
1992)). Issues regarding the credibility of witnesses, the weight and value to be accorded
their testimony, and the factual questions raised by the evidence adduced at trial are to be
resolved by the post-conviction court as the trier of fact. See Henley v. State, 960
S.W.2d 572, 579 (Tenn. 1997). Therefore, the post-conviction court‟s findings of fact are
entitled to substantial deference on appeal unless the evidence preponderates against
those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

       A claim of ineffective assistance of counsel is a mixed question of law and fact.
See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction
court‟s findings of fact de novo with a presumption that those findings are correct. See
Fields, 40 S.W.3d at 458. However, we will review the post-conviction court‟s
conclusions of law purely de novo. Id.

        When a petitioner seeks post-conviction relief on the basis of ineffective
assistance of counsel, “the petitioner bears the burden of proving both that counsel‟s
performance was deficient and that the deficiency prejudiced the defense.” Goad v.
State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)). To establish deficient performance, the petitioner must show that counsel‟s
performance was below “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the
petitioner must show that “there is a reasonable probability that, but for counsel‟s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. Generally, [b]ecause a petitioner must establish
both prongs of the test, a failure to prove either deficiency or prejudice provides a
sufficient basis to deny relief on the ineffective assistance claim. Indeed, a court need not
                                            -6-
address the components in any particular order or even address both if the [petitioner]
makes an insufficient showing of one component. Goad, 938 S.W.2d at 370 (citing
Strickland, 466 U.S. at 697).

        Turning to the instant case, the State charged the Petitioner with aggravated rape
and three alternative theories of aggravated kidnapping, i.e., false imprisonment
committed to facilitate the commission of a felony, false imprisonment committed with
the intent to terrorize the victim, and false imprisonment where the victim suffers serious
bodily injury. See Tenn. Code Ann. § 39-13-304(a)(1), (3), (4). False imprisonment is
defined as the knowing removal or confinement of another unlawfully so as to interfere
substantially with the other‟s liberty. Tenn. Code Ann. § 39-13-302(a). The jury
ultimately convicted the Petitioner of all four offenses as charged.

       Our case law reveals a long-standing issue regarding the legitimacy of a
kidnapping conviction when the act(s) establishing the offense occurred during an
accompanying felony. In State v. Anthony, 817 S.W.2d 299, 301 (Tenn. 1991), a jury
convicted the defendant of the armed burglary of a Shoney‟s restaurant, the armed
robbery of the restaurant‟s manager, and the aggravated kidnappings of the manager and
five other employees. In a split decision, this court reversed all of the aggravated
kidnapping convictions, holding that “[u]nless independent and separate fact patterns for
both the armed robbery and the aggravated kidnapping can be proven, appellant can be
convicted of only the armed robbery.” Anthony, 817 S.W.2d at 30. Our supreme court,
citing due process concerns, held that before a separate kidnapping conviction may be
sustained, there must be a determination of

              whether the confinement, movement, or detention [was]
              essentially incidental to the accompanying felony and [was]
              not, therefore, sufficient to support a separate conviction for
              kidnapping, or whether it [was] significant enough, in and of
              itself, to warrant independent prosecution and [was],
              therefore, sufficient to support such conviction.

Id. at 306. After its own analysis, our supreme court affirmed this court‟s decision. Id. at
307-08.

       Later, in State v. Dixon, 957 S.W.2d 532, 535 (Tenn. 1997), our supreme court
modified the Anthony court‟s “essentially incidental” analysis and established a two-
prong test for determining whether a separate conviction for kidnapping violates due
process. The first step concerned a determination of whether the movement or
confinement was beyond that necessary to commit the accompanying felony. Id. If so,
the second step concerned ascertaining whether the additional movement or confinement
                                            -7-
(1) prevented the victim from summoning help; (2) lessened the appellant‟s risk of
detection; or (3) created a significant danger or increased the victim‟s risk of harm. Id.

        In White, our supreme court expressly overruled Anthony and its progeny, holding
that “[t]he separate due process test articulated first in Anthony, and subsequently refined
in Dixon . . . , is . . . no longer necessary to the appellate review of a kidnapping
conviction accompanied by a separate felony.” 362 S.W.3d at 578. Instead, the court
held that “whether the evidence, beyond a reasonable doubt, establishes each and every
element of kidnapping, as defined by statute, is a question for the jury properly instructed
under the law,” thereby concluding that a defendant‟s constitutional concerns are
protected by appellate review of the sufficiency of the convicting evidence. Id. at 577-
78. Therefore, our supreme court cautioned that “trial courts must ensure that juries
return kidnapping convictions only in those instances in which the victim‟s removal or
confinement exceeds that which is necessary to accomplish the accompanying felony.”
Id. To effectuate this end, our supreme court devised the following instruction to be
given by trial courts:

              To establish whether the defendant‟s removal or confinement
              of the victim constituted a substantial interference with his or
              her liberty, the State must prove that the removal or
              confinement was to a greater degree than that necessary to
              commit the offense of [insert offense], which is the other
              offense charged in this case. In making this determination,
              you may consider all the relevant facts and circumstances of
              the case, including, but not limited to, the following factors:

                     • the nature and duration of the victim‟s
                     removal or confinement by the defendant;

                     • whether the removal or confinement occurred
                     during the commission of the separate offense;

                     • whether the interference with the victim‟s
                     liberty was inherent in the nature of the separate
                     offense;

                     • whether the removal or confinement prevented
                     the victim from summoning assistance,
                     although the defendant need not have succeeded
                     in preventing the victim from doing so;

                                            -8-
                     • whether the removal or confinement reduced
                     the defendant‟s risk of detection, although the
                     defendant need not have succeeded in this
                     objective; and

                     • whether the removal or confinement created a
                     significant danger or increased the victim‟s risk
                     of harm independent of that posed by the
                     separate offense.

Id. at 580-81 (footnote omitted).

       Our review of the jury instructions in this case confirms that the trial court
instructed the jury in accordance with the pattern jury instruction for aggravated
kidnapping in effect at the time of the Petitioner‟s trial and “did not define the key
element—the substantial interference with the victim‟s liberty—as requiring a finding by
the jury that the victim‟s removal or confinement was not essentially incidental to the
accompanying felony offense.” White, 362 S.W.3d at 580. Moreover, although our
supreme court filed White on March 9, 2012, which was after the Petitioner‟s trial, trial
counsel filed the Petitioner‟s motion for new trial on March 23, 2012. Thus, counsel,
who testified that he was aware of White but did not think White applied retroactively,
could have raised a White issue in the Petitioner‟s motion for new trial and on direct
appeal of the Petitioner‟s convictions. See State v. Bennie Osby, No. W2012-00408-
CCA-R3-CD, 2012 WL 5381371, at *7 (Tenn. Crim. App. at Jackson, Nov. 2, 2012),
perm. to appeal denied, (Tenn. 2013) (concluding that our supreme court “intended
retroactive application of the ruling to those already tried cases in the appellate pipeline,
that is pending direct appeal, at the time it was filed and that its use of the word
„retroactive‟ was intended to prevent use of the ruling for collateral attack”).

        Regardless, even if counsel was deficient for failing to raise the issue, we conclude
that the Petitioner was not prejudiced. The evidence shows that the Petitioner raped the
victim and then confined her to his apartment for several days. Thus, we have no
hesitation in concluding that the Petitioner‟s confinement of the victim was not
essentially incidental to the accompanying aggravated rape and was not subject to
different interpretations by the jury. Accordingly, the Petitioner would have been
unsuccessful if counsel had raised the White issue in the motion for new trial or on direct
appeal of the Petitioner‟s convictions, and the Petitioner is not entitled to post-conviction
relief.




                                            -9-
                                   III. Conclusion

      Based upon the record and the parties‟ briefs, we affirm the judgment of the post-
conviction court.


                                                  _________________________________
                                                  NORMA MCGEE OGLE, JUDGE




                                         - 10 -
