        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs September 10, 2013

                  MICHAEL SMALL v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Shelby County
                        No. 01-00925     W. Otis Higgs, Judge


                 No. W2012-02101-CCA-R3-PC - Filed January 7, 2014


Petitioner, Michael Small, was convicted of aggravated robbery and received a sentence of
20 years, to be served consecutively to his sentences for three prior aggravated robbery
convictions. Petitioner appealed his sentence, and this court affirmed the judgment of the
trial court. State v. Michael Small, No. W2010-00470-CCA-R3-CD (Tenn. Crim. App., Mar.
28, 2011), perm. app. denied (Tenn., July 15, 2011). A summary of the facts underlying
Petitioner’s convictions in this case can be found in that opinion. Petitioner now appeals the
trial court’s denial of his petition for post-conviction relief, in which he alleged that his trial
counsel and appellate counsel were ineffective. Having reviewed the record before us, we
affirm the judgment of trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R. and D. K ELLY T HOMAS, J R., JJ., joined.

Juni S. Ganguli, Memphis, Tennessee, for the appellant, Michael Small.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and David Zak, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                           OPINION

Post-conviction hearing

       At the beginning of the post-conviction hearing, counsel for Petitioner explained to
the court that Petitioner’s trial counsel was unavailable to testify because he was currently
practicing law in another state. Petitioner’s appellate counsel testified that he met with trial
counsel briefly after Petitioner’s trial and sentencing on the same day that appellate counsel
was appointed to represent Petitioner. On appeal, appellate counsel raised only the issue of
consecutive sentencing. Appellate counsel testified that the victim who was working behind
the counter of the store was not able to identify Petitioner, but a customer who was pulling
into the parking lot as Petitioner exited the store identified Petitioner in a photographic lineup
and at trial.

       Appellate counsel reviewed the trial court’s case file and testified that it contained a
“motion to suppress statement” filed by trial counsel in November 2009. Appellate counsel
did not find a motion by Petitioner’s trial counsel to suppress the photospread identification;
however, appellate counsel testified that the file contained a response by the State to
Petitioner’s motions, which “indicate[d] [the] photo identification that was filed December
30th, 2009.” Appellate counsel’s review of the file did not indicate that trial counsel hired
an eyewitness identification expert. He testified that such an expert “may have” helped
Petitioner’s defense. On cross-examination by the State, appellate counsel estimated that
Petitioner had more than eight indictments against him. He testified that trial counsel was
not the original attorney in Petitioner’s case, which is the subject of this post-conviction
proceeding, and that Petitioner had other attorneys representing him in his other cases.
Appellate counsel acknowledged that another attorney could have filed motions on behalf
of Petitioner before trial counsel became Petitioner’s attorney.

         Petitioner testified that he was charged in multiple indictments in January, 2001, for
aggravated robberies that occurred in 2000. Petitioner testified that the evidence against him
at trial was testimony from an eyewitness who saw Petitioner leaving the store with a shotgun
under his coat while stuffing money in his pocket. Petitioner testified that trial counsel did
not provide him with a copy of discovery materials in this case and that he did not inform
trial counsel that he had not been provided discovery. He acknowledged that he received the
statements of the victim and the eyewitness from an investigator in 2001. Petitioner did not
remember whether trial counsel filed a motion to suppress the photospread. Petitioner
testified that he had been promised a plea offer of eight years and that was why he gave a
confession to Memphis Police Colonel Jeff Clark.

        In a written order denying post-conviction relief, the trial court found that trial
counsel’s performance was not deficient for failing to investigate and that Petitioner had
failed to establish what, if any, exculpatory evidence further investigation by trial counsel
would have revealed. The trial court also found that trial counsel’s failure to call an
eyewitness identification expert witness was not deficient because, without trial counsel’s
testimony at the post-conviction hearing, the court could not determine that the decision was
not a reasonably based trial strategy. The court also concluded that Petitioner had not
established prejudice because the eyewitness also made an in-court identification of

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Petitioner, was subject to cross-examination, and additional evidence against Petitioner
included Petitioner’s confession. The trial court found that trial counsel was not deficient
for failing to file a motion to suppress Petitioner’s statement or the photographic lineup
because the case file indicated that those motions had already been filed by Petitioner’s
previous trial counsel.

Analysis

        On appeal, Petitioner argues that trial counsel’s performance was deficient in that he
failed to communicate with Petitioner and did not provide Petitioner with discovery
materials. Petitioner also asserts that trial counsel failed to investigate the case. Specifically,
Petitioner asserts that trial counsel should have obtained an eyewitness identification expert
to bolster his defense and that trial counsel “likely” did not interview witnesses prior to trial.
Petitioner asserts that if he “had been aware that victims would identify him, there is a
probability that he would have accepted the prosecution’s offer of settlement.” Petitioner
also contends that trial counsel did not communicate Petitioner’s range of punishment before
trial and that if Petitioner had known his potential range of punishment, “it is likely that he
would have made different decisions and the outcome of these proceedings would have
differed.” Petitioner also contends that trial counsel should have filed a motion to suppress
the photographic lineup. Finally, Petitioner asserts that appellate counsel’s performance was
also deficient for raising only the issue of sentencing on direct appeal and for not raising as
an issue the sufficiency of the evidence to support Petitioner’s conviction.

        The post-conviction petitioner bears the burden of proving his allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-110(f). On appeal, the appellate court
accords to the post-conviction court’s findings of fact the weight of a jury verdict, and these
findings are conclusive on appeal unless the evidence preponderates against them. Henley
v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn.
Crim. App. 1997). By contrast, the post-conviction court’s conclusions of law receive no
deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453
(Tenn. 2001).

       To establish entitlement to post-conviction relief via a claim of ineffective assistance
of counsel, the post-conviction petitioner must affirmatively establish first that “the advice
given, or the services rendered by the attorney, are [not] within the range of competence
demanded of attorneys in criminal cases[,]” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975), and second that his counsel’s deficient performance “actually had an adverse effect
on the defense[,]” Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984). In other words, the petitioner must “show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would

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have been different.” Id. at 694. Should the petitioner fail to establish either deficient
performance or prejudice, he is not entitled to relief. Id. at 697; Goad v. State, 938 S.W.2d
363, 370 (Tenn. 1996). Indeed, “[i]f it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, that course should be followed.” Strickland, 466 U.S.
at 697.

        When reviewing a claim of ineffective assistance of counsel, we will not grant the
petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or provide
relief on the basis of 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). Such
deference to the tactical decisions of counsel, however, applies only if the choices are made
after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.
App. 1992).

       Claims of ineffective assistance of counsel are mixed questions of law and fact. State
v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn.
1999). When reviewing the application of law to the post-conviction court’s factual findings,
our review is de novo, and the post-conviction court’s conclusions of law are given no
presumption of correctness. Fields, 40 S.W.3d at 457-58; see also State v. England, 19
S.W.3d 762, 766 (Tenn. 2000).

       The principles for determining the effectiveness of counsel at trial and on appeal are
the same in a post-conviction proceeding. See Campbell v. State, 904 S.W.2d 594, 596
(Tenn. 1995). A petitioner alleging ineffective assistance of appellate counsel must prove
both that 1) appellate counsel was objectively unreasonable in failing to raise a particular
issue on appeal, and 2) absent counsel’s deficient performance, there was a reasonable
probability that the petitioner’s appeal would have been successful before the state’s highest
court. See Smith v. Robbins, 528 U.S. 259, 285 (2000). In Carpenter v. State, 126 S.W.3d
879 (Tenn. 2004), our supreme court stated the following regarding review of allegations of
ineffective assistance by appellate counsel.

        Appellate counsel are not constitutionally required to raise every
        conceivable issue on appeal. King v. State, 989 S.W.2d 319, 334 (Tenn.
        1999); Campbell v. State, 904 S.W.2d 594, 596-97 (Tenn. 1995). Indeed,
        “experienced advocates have long ‘emphasized the importance of
        winnowing out weaker arguments on appeal and focusing on one central
        issue if possible, or at most a few key issues.’” Cooper v. State, 849
        S.W.2d 744, 747 (Tenn. 1993) (quoting Jones v. Barnes, 463 U.S. 745, 751,
        103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983)); see also Smith v. Robbins, 528
        U.S. 259, 288, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000). The determination

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         of which issues to raise on appeal is generally within appellate counsel’s
         sound discretion. Jones, 463 U.S. at 751, 103 S. Ct. 3308; King, 989
         S.W.2d at 334; Cooper, 849 S.W.2d at 747. Therefore, appellate counsel’s
         professional judgment with regard to which issues will best serve the
         appellant on appeal should be given considerable deference. See Campbell,
         904 S.W.2d at 597; see also Strickland, 466 U.S. at 689, 104 S. Ct. 2052.

Carpenter, 126 S.W.3d at 887.

        We conclude that the evidence does not preponderate against the trial court’s findings
that trial counsel was not deficient for failing to investigate or that Petitioner was prejudiced
by counsel’s alleged failure to investigate. We agree with the findings of the trial court.
Petitioner offered no evidence as to what further investigation by trial counsel would have
uncovered. Additionally, Petitioner did not present testimony by an eyewitness identification
expert at the post-conviction hearing. It is well settled that “[w]hen a petitioner contends that
trial counsel failed to discover, interview, or present witnesses in support of his defense,
these witnesses should be presented by the petitioner at the evidentiary hearing.” Black v.
State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Neither the post-conviction court nor
the reviewing court may speculate on “what a witness’s testimony might have been if
introduced by defense counsel.” Id. Petitioner also asserts that trial counsel should have
moved to suppress the witness’s photospread identification of Petitioner; however Petitioner
presented no proof at the post-conviction hearing as to why the photospread should have
been suppressed, nor does Petitioner cite any authority in his brief to support his assertion
that the photospread should have been suppressed. Petitioner has therefore failed to establish
prejudice.

        Petitioner bases his assertion that trial counsel failed to interview witnesses prior to
trial on appellate counsel’s testimony that his review of the case file indicated that trial
counsel did not request assistance for experts. Petitioner contends, therefore, that “it is likely
that neither an investigator (for the defense) nor counsel spoke with case witnesses pre-trial.”
We are not persuaded by this argument. Petitioner does not state what witnesses he contends
counsel failed to interview, nor did he present the testimony of any such witnesses at the
post-conviction hearing.

        We also conclude that Petitioner has failed to establish that trial counsel was deficient
for failing to communicate with him. Petitioner asserts in his brief that trial counsel failed
to communicate Petitioner’s potential range of punishment prior to trial. At the post-
conviction hearing, Petitioner testified that he was charged in 18 indictments for aggravated
robbery. Petitioner testified that during his interview with Colonel Clark in 2000, Colonel
Clark promised him an offer of eight years if he confessed to the offenses. At trial, Colonel

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Clark denied ever making such statement. At the post-conviction hearing, Petitioner testified
that he told trial counsel that Colonel Clark had offered him an eight-year sentence in
exchange for his statement. Petitioner did not testify, however, that trial counsel failed to
explain to him the potential range of punishment for the offenses, nor does Petitioner cite to
the record in his brief any testimony concerning trial counsel’s failure to communicate the
range of punishment to him.

       Petitioner acknowledged that trial counsel explained to him the evidence against him,
and although Petitioner testified that trial counsel did not provide him with the State’s
discovery response, Petitioner acknowledged that he received the statements of the State’s
witnesses before trial counsel was appointed to represent him. Petitioner testified that trial
counsel did not provide him a copy of discovery materials “because [he] had the one that they
gave [him] from [20]01, that’s the one that [he] had.” Petitioner did not testify what, if
anything, that was included in the State’s response to discovery that trial counsel failed to
provide him; nor did Petitioner make any such materials an exhibit at the post-conviction
hearing.

        Petitioner alleges in his brief that trial counsel did not discuss with Petitioner “whether
or not it would be in his best interest to testify” at trial. Petitioner testified at trial. At the
post-conviction hearing, Petitioner testified, “when I got up here [on the witness stand] with
the best way that I knew how, I don’t know about the law, so to speak, only thing I can do
is just tell the truth about what happened, . . . .” Petitioner did not testify about any
discussions or lack of discussion with trial counsel about his decision to testify at trial.
Therefore, Petitioner has failed to establish that trial counsel was deficient.

        Finally, we conclude that appellate counsel was not deficient for failing to raise on
appeal the issue of the sufficiency of the evidence at trial. We note that Petitioner has failed
to include in his brief any legal argument in support of any issues he asserts appellate counsel
should have raised on appeal, including the sufficiency of the evidence at trial. Nevertheless,
our review of the evidence shows that a challenge by Petitioner to the sufficiency of the
evidence would not have been successful on appeal. The evidence at trial consisted of an
eyewitness identification and Petitioner’s signed, written statement confessing that he held
the victim at gunpoint during the robbery. Small, 2011 WL 1137061, at *2. Appellate
counsel acknowledged at the post-conviction hearing, and this court’s opinion on direct
appeal confirms, that he raised only the issue of consecutive sentencing. Appellate counsel
testified that while preparing the case for appeal, he “was thinking, sentencing, first and
foremost and possibly sufficiency of evidence, but [he] discounted that down the road.”
Appellate counsel did not testify about his reasons for not raising the issue on appeal, but the
record does not indicate that appellate counsel’s decision was unreasonable. Petitioner is not
entitled to relief.

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For the reasons stated above, we affirm the judgment of the trial court.


                                           _________________________________
                                           THOMAS T. WOODALL, JUDGE




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