        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs April 19, 2016

              JUSTIN L. HORSTEAD v. STATE OF TENNESSEE

               Appeal from the Circuit Court for Montgomery County
                  No. 41200426      John H. Gasaway, III, Judge


                 No. M2015-01070-CCA-R3-PC – Filed May 18, 2016


In 2013, the Petitioner, Justin L. Horstead, entered a best interest plea to aggravated
robbery. The trial court sentenced him in accordance with the plea agreement to ten
years, to be served concurrently with a previous probationary sentence of six years. The
Petitioner timely filed a petition for post-conviction relief alleging that he had received
the ineffective assistance of counsel and that, but for counsel‟s errors, he would have
insisted on taking his case to trial. After a hearing, the post-conviction court denied the
petition. On appeal, the Petitioner contends that the post-conviction court erred when it
denied his petition. We affirm the post-conviction court‟s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which JOHN EVERETT
WILLIAMS and NORMA MCGEE OGLE, JJ., joined.

B. Nathan Hunt, Clarksville, Tennessee, for the appellant, Justin L. Horstead.

Herbert H. Slatery III, Attorney General and Reporter; Meredith Devault, Senior
Counsel; John W. Carney, Jr., District Attorney General; and Arthur Bieber, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION
                                        I. Facts

       This case arises from allegations that the Petitioner committed aggravated robbery
and two aggravated assaults. At the guilty plea hearing, on January 22, 2013, the State
offered the following factual basis in support of the Petitioner‟s guilty plea:

       [O]n March 13th 2012 [the Petitioner] went to the home of a Mr. Settle
       here in town. At the home of Mr. Settle is a Mr. Gene Kelly. Ms.
       Kimberly Hubbard, her son Talon Hubbard and another younger son were
       at home. Mr. Settle had just entered the home and had left the door open.
       Shortly behind that a hooded black male, wearing hood, ball cap,
       brandished a gun, asked for pills and/or money and eventually put the gun
       to Mr. Kelly while ordering everybody else to basically remain where they
       were. He collected 14 hundred dollars in cash from Mr. Kelly, that was
       bond money to get Ms. Miranda Yetton out of jail, and collected a --- Mr.
       Kelly‟s cell phone. The cell phone was recovered a few feet outside the
       apartment just a short time after [the Petitioner] left.

              [The Petitioner] was identified by Mr. Kelly. Ms. Hubbard viewed a
       photographic lineup, identified [the Petitioner] but said that she was only
       about 50 percent positive, because she didn‟t get a good look. That was the
       only identifications. The other case would be dismissed in settlement. I
       think they‟ve done this as a best interest plea.

       The Petitioner entered a best interest plea to aggravated robbery and the other
charges were dismissed. The trial court ensured that the Petitioner understood the rights
that he was waiving and that his plea was knowingly and voluntarily entered.

       On June 27, 2013, the Petitioner filed his petition for post-conviction relief. He
was incarcerated in Kentucky at the time, and the hearing was not held until May 13,
2015. At the hearing, the parties presented the following evidence: the Petitioner testified
that Counsel represented him for the charges he faced in Tennessee and also for charges
he faced in Kentucky. The Petitioner said that he pleaded guilty in this matter and that he
received a sentence of ten years, to be served at 85%. The Petitioner said that Counsel
met with him approximately four days before trial and that the two discussed the
evidence in the case and settlement offers by the State. The Petitioner said that he had
two witnesses who would have provided him an alibi had the case gone to trial. One of
those witnesses was the Petitioner‟s girlfriend at the time. On the morning of trial,
Counsel informed him that the two witnesses had not arrived for court. He said that one
of the witnesses had to go to school and the other had a doctor‟s appointment. The
Petitioner said that he asked Counsel to request a continuance.

       The trial court declined the motion to continue. The Petitioner said that Counsel
encouraged him to accept the State‟s offer and plead guilty to avoid a greater sentence if
he were convicted. The Petitioner said that he pleaded guilty, and he thought he received
a sentence of ten years, to be served at 75%. He later learned that his sentence was to be
served at 85%.


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        The Petitioner testified that he believed that Counsel had subpoenaed the
witnesses. He acknowledged that the guilty plea transcript revealed that Counsel told the
trial court that she had not subpoenaed the witnesses because they were “cooperative”
witnesses. He said that he would not have pleaded guilty had those two witnesses been
present on the day of trial.

       The Petitioner said that Counsel also did not “subpoena” one of the police
officer‟s video recordings from the camera mounted in his vehicle. The Petitioner said
that both of his witnesses testified during his preliminary hearing in general sessions
court.

        During cross-examination, the Petitioner agreed that, as of the day he pleaded
guilty, he had four or five previous felony convictions. He knew that he was at least a
Range II offender. He agreed that, if convicted, he faced between twelve and twenty
years of incarceration and that, because of his guilty plea, he received sentences
concurrent with his sentence for violating a previous Community Corrections sentence.
The Petitioner denied remembering that the trial court had informed him that he could get
sentence reductions down to 75% but that he would have to serve at least 75% of his
sentence before being eligible for parole. The Petitioner said all he remembered was
“everyone” saying “75%.”

        Counsel testified that a court appointed her to represent the Petitioner for charges
he faced in Tennessee and Kentucky. She said that she met with the Petitioner before
trial and she believed she communicated the offers made to him by the State. Counsel
said that the sentence that the Petitioner received was the lowest offer made to him by the
State. Counsel said that, on the morning of trial, two women came to the courthouse.
One of them brought the Petitioner clothing to wear. Counsel said that they called the
two other witnesses, who had not arrived, from the phone of the woman who was there.
Those witnesses indicated that they were not available to come to court. One witness had
planned to testify as an alibi witness and the other witness would have testified that the
Petitioner would not have committed these robberies.

       Counsel said that she then spoke with the Petitioner who was “upset.” She spent
several hours discussing with the Petitioner how best to proceed. They ultimately
decided to make an oral motion to continue, which the trial court denied because Counsel
had not subpoenaed the witnesses. Counsel was unsure whether she knew about the
witnesses before the weekend of trial, but she said that she spoke with both of them the
Sunday before the trial on Monday, and the witnesses had agreed to come to court. She
said, however, that she should have subpoenaed them. The State then changed the offer.
The Petitioner had six years to serve on several other cases, and the State made a new
offer that would allow his sentence to run concurrently with the six years. This meant
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that the Petitioner‟s sentence would only be increased by the percentage of four years that
he was required to serve.

        Counsel testified that she was unsure whether the Petitioner had a preliminary
hearing and whether his two witnesses testified if there had been a hearing. She did not
recall whether she requested a copy of the transcript of the preliminary hearing. Counsel
testified that she believed that, had the witnesses come to court, the Petitioner would have
taken his case to trial.

        During cross-examination, Counsel testified that in her eighteen years of practing
law, she had never revealed her alibi witnesses during a preliminary hearing because it
was not a good strategy. In her opinion, disclosure of an alibi witness at a preliminary
hearing provided the State with additional time to prove that the alibi witness was lying.
Counsel said that, while she did not specifically recall, she assumed that she had
informed the two witnesses that they would be under oath when they testified and that, if
their testimony was not truthful, they could be subject to charges of perjury.

       Based upon this evidence, the post-conviction court found that the Petitioner had
“failed to establish by clear and convincing evidence that he received ineffective
representation or is entitled to post-conviction relief on any other grounds claimed by the
Petitioner.” It is from this judgment that the Petitioner now appeals.

                                       II. Analysis

       On appeal, the Petitioner contends that the post-conviction court erred when it
denied his petition for post-conviction relief. He asserts Counsel was ineffective by not
subpoenaing two witnesses to testify on his behalf and for not requesting a transcript of
the preliminary hearing where he claims the two alibi witnesses testified. The Petitioner
contends that he would not have pleaded guilty but for Counsel‟s errors. The State
counters that the Petitioner failed to present his alibi witnesses at the post-conviction
hearing, and this Court may not speculate as to their testimony, so the Petitioner has not
proven that Counsel‟s performance was deficient or that he was prejudiced. We agree
with the State.

       In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional
right. T.C.A. § 40-30-103 (2014). The petitioner bears the burden of proving factual
allegations in the petition for post-conviction relief by clear and convincing evidence.
T.C.A. § 40-30-110(f) (2014). Upon review, this Court will not re-weigh or re-evaluate
the evidence below; all questions concerning the credibility of witnesses, the weight and
value to be given their testimony, and the factual issues raised by the evidence are to be
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resolved by the trial judge, not the appellate courts. Momon v. State, 18 S.W.3d 152, 156
(Tenn. 1999) (citing Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997)). A post-
conviction court‟s factual findings are subject to a de novo review by this Court;
however, we must accord these factual findings a presumption of correctness, which can
be overcome only when a preponderance of the evidence is contrary to the post-
conviction court‟s factual findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001).
A post-conviction court‟s conclusions of law are subject to a purely de novo review by
this Court, with no presumption of correctness. Id. at 457.

       The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9, of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The
following two-prong test directs a court‟s evaluation of a claim for ineffectiveness:

      First, the [petitioner] must show that counsel‟s performance was deficient.
      This requires showing that counsel made errors so serious that counsel was
      not functioning as the “counsel” guaranteed the [petitioner] by the Sixth
      Amendment. Second, the [petitioner] must show that the deficient
      performance prejudiced the defense. This requires showing that counsel's
      errors were so serious as to deprive the [petitioner] of a fair trial, a trial
      whose result is reliable. Unless a [petitioner] makes both showings, it
      cannot be said that the conviction or death sentence resulted from a
      breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Melson, 772
S.W.2d 417, 419 (Tenn. 1989).

       In reviewing a claim of ineffective assistance of counsel, this Court must
determine whether the advice given or services rendered by the attorney are within the
range of competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at
936. To prevail on a claim of ineffective assistance of counsel, “a petitioner must show
that counsel‟s representation fell below an objective standard of reasonableness.” House
v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369
(Tenn. 1996)). When evaluating an ineffective assistance of counsel claim, the reviewing
court should judge the attorney‟s performance within the context of the case as a whole,
taking into account all relevant circumstances. Strickland, 466 U.S. at 690; State v.
Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court should
avoid the “distorting effects of hindsight” and “judge the reasonableness of counsel‟s
challenged conduct on the facts of the particular case, viewed as of the time of counsel's
conduct.” Strickland, 466 U.S. at 689-90. In doing so, the reviewing court must be
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highly deferential and “should indulge a strong presumption that counsel‟s conduct falls
within the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462.
Finally, we note that a defendant in a criminal case is not entitled to perfect
representation, only constitutionally adequate representation. Denton v. State, 945
S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of
ineffective assistance of counsel, „we address not what is prudent or appropriate, but only
what is constitutionally compelled.‟” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting
United States v. Cronic, 466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed
to have been ineffective merely because a different procedure or strategy might have
produced a different result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim.
App. 1980). “The fact that a particular strategy or tactic failed or hurt the defense, does
not, standing alone, establish unreasonable representation. However, deference to
matters of strategy and tactical choices applies only if the choices are informed ones
based upon adequate preparation.” House, 44 S.W.3d at 515 (quoting Goad, 938 S.W.2d
at 369).

        If the petitioner shows that counsel‟s representation fell below a reasonable
standard, then the petitioner must satisfy the prejudice prong of the Strickland test by
demonstrating there is a reasonable probability that, but for counsel‟s unprofessional
errors, the result of the proceeding would have been different. Strickland, 466 U.S. at
694; Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). This reasonable probability
must be “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at
694; Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994). In the context of a guilty plea,
as in this 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 pleaded guilty and would have insisted on going to trial.” Hill
v. Lockhart, 474 U.S. 52, 59 (1985) (footnote omitted); see also Walton v. State, 966
S.W.2d 54, 55 (Tenn. Crim. App. 1997).

       When a petitioner claims that trial counsel was ineffective for failing to present a
witness in support of the petitioner‟s defense, such witness should be presented at the
post-conviction hearing. State v. Black, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).
As this court has previously stated:

               As a general rule, this is the only way the petitioner can establish
       that . . . the failure to have a known witness present or call the witness to
       the stand resulted in the denial of critical evidence which inured to the
       prejudice of the petitioner. It is elementary that neither a trial judge nor an
       appellate court can speculate or guess on the question of whether further

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       investigation would have revealed a material witness or what a witness‟s
       testimony might have been if introduced by defense counsel.

Id.

       In this case, the Petitioner contends that trial counsel was ineffective for failing to
subpoena his two alibi witnesses to trial or to obtain the transcript of the preliminary
hearing where he alleges that they testified. The Petitioner, however, failed to present the
witnesses‟ testimony or a transcript from the preliminary hearing at the post-conviction
hearing. Neither the post-conviction court nor this Court may speculate as to what the
testimony may have been or whether it would have been favorable to the Petitioner. See
id. at 757. Accordingly, the Petitioner has failed to prove that he was prejudiced by
Counsel‟s alleged deficiency and is not entitled to relief on this issue

                                      III. Conclusion

       Based upon the foregoing authorities and reasoning, we affirm the post-conviction
court‟s denial of the Petitioner‟s petition for post-conviction relief.


                                                  _________________________________
                                                  ROBERT W. WEDEMEYER, JUDGE




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