       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                         Assigned on Briefs January 5, 2016

              COURTNEY WESLEY v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                         No. 1106153   Chris Craft, Judge


             No. W2015-01476-CCA-R3-PC - Filed February 29, 2016


The petitioner, Courtney Wesley, appeals the denial of his petition for post-conviction
relief from his 2013 Shelby County Criminal Court jury convictions of aggravated
burglary and theft of property valued at $1,000 or more, alleging that he was denied the
effective assistance of counsel. Discerning no error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ALAN E.
GLENN and D. KELLY THOMAS, JR., JJ., joined.

Sharon Fortner, Memphis, Tennessee, for the appellant, Courtney Wesley.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Chris Lareau,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                      OPINION

              A Shelby County Criminal Court jury convicted the petitioner of
aggravated burglary and theft, and the trial court imposed a 10-year effective sentence,
for his role in the theft of several pieces of NASCAR memorabilia from a residence
belonging to the victim, Rodney Pickering. On direct appeal, this court summarized the
facts supporting the petitioner’s convictions as follows:

             The State’s evidence proved that the back door of the victim’s
             house had been kicked in. [The petitioner] and an associate
             were seen exiting the house, carrying property that belonged
             to the victim. The victim asserted that he did not know [the
             petitioner] and had not given [the petitioner] permission to
              enter his residence. Moreover, the victim clarified that
              although he often spent the night at another location that
              housed his business, the house that was burglarized was,
              indeed, his residence.

                     . . . . The State presented evidence that [the petitioner]
              was carrying property that belonged to the victim as he exited
              the victim’s house. More of the victim’s property had already
              been loaded into a waiting truck. [The petitioner] dropped the
              box he was carrying as he fled the scene. The victim testified
              with regard to the value attributed to the property.

State v. Courtney Wesley, No. W2013-00430-CCA-R3-CD, slip op. at 7 (Tenn. Crim.
App., Jackson, Jan. 17, 2014), perm. app. denied (Tenn. June 20, 2014).

              Following the denial of his application for permission to appeal to the
supreme court, the petitioner filed a timely petition for post-conviction relief, alleging,
among other things, that he was denied the effective assistance of counsel at trial.
Following the appointment of counsel, the petitioner filed an amended petition for post-
conviction relief, adding claims that the evidence was insufficient to support his
convictions and that the convictions were obtained “in direct contradiction” to his
constitutional rights to a speedy trial and indictment by a grand jury and refining his
claim of ineffective assistance of counsel.

               At the April 24, 2015 evidentiary hearing, the petitioner testified that he
was arrested on October 14, 2010, and accused of the aggravated burglary of the victim’s
residence. The petitioner claimed that the charges against him were dismissed with
prejudice in the Shelby County Criminal Court prior to his being indicted by the Shelby
County grand jury. Upon questioning by the post-conviction court, the petitioner agreed
that “the warrant not the case, but the warrant was dismissed holding [him] in jail until
[he] got indicted and brought to court.”

               The petitioner testified that at the time he was charged with the offenses in
this case, he had two other cases pending in Shelby County. Those two cases were
dismissed after the petitioner was charged in federal court for the same underlying
offenses. The petitioner said that, from that point, when he met with trial counsel “it was
accomplished by [his] federal lawyer,” explaining that trial counsel was accompanied by
the attorney representing the petitioner in federal court and that their discussions were
confined to his “federal cases.” He said that, as a result of these discussions, he believed
that “all of these cases in [s]tate court would be dismissed if [he] pleaded guilty in federal
court.” He said that trial counsel advised him “to plead guilty in federal court and have
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these other cases dismissed in state court.” The petitioner said that he rejected each of
the State’s plea offers and elected to go to trial because he was innocent.

              The petitioner testified that one of his co-defendants, Jeremy Self, initially
implicated the petitioner in the offenses but later recanted. He explained, “[O]nce out on
bond Jeremy Self decided to recant his statement which we did a[n] affidavit, a statement
of facts, where he took all the guilt and knowledge that he falsely accused me in this
crime.” The petitioner said that he was present when Mr. Self prepared the affidavit but
denied threatening Mr. Self to get him to recant. The petitioner claimed that trial counsel
should have presented the affidavit at his trial.

                The petitioner testified that his trial counsel failed to adequately prepare for
his trial and that the two never discussed his rights, the evidence, or the range of potential
punishment for the offenses because the petitioner “was told that [his] offer was a twelve
year sentence” to dispose of all three pending cases. He said that “by studying law on
[his] own,” he came to realize that the plea offer was not favorable because he “knew that
[he] could only get a ten which was the max.”

              The petitioner acknowledged receiving a copy of all the discovery materials
but claimed that trial counsel never discussed them with him. He said that counsel did
not visit him in jail, did not develop any theory of defense, and had no trial strategy. He
said that counsel failed to capitalize on inconsistencies between the testimony provided
by the State’s witnesses at the preliminary hearing and their testimony at trial. The
petitioner said that he asked trial counsel to subpoena alibi witnesses but that counsel
failed to do so. He testified that he wanted his mother, his girlfriend, and one of his co-
defendants to testify but that counsel did not present them as witnesses. He claimed that
his mother “would have testified that the day this offense took place,” she telephoned him
to come to her house and separate two of his pit bulldogs that were fighting, that his
girlfriend drove him to his mother’s house, and that he was forced to chase one of the
dogs into the vicinity of the crimes, which accounted for his sweating and racing heart
when he was apprehended by the police. The petitioner said that he chose not to testify
because counsel advised him that it would not be in his best interest to do so.

                Trial counsel testified that he met with the petitioner “[a] number of times”
and that several of those meetings included the petitioner’s federal trial counsel. Counsel
explained that it was his hope “that if there was a plea agreement reached in federal court
that . . . there would be a recommendation that [the instant case] would be dismissed.”
He said that the prosecutor led him to believe that was the likely outcome. When those
negotiations “fell apart,” counsel tried to negotiate an agreement to dispose of the
petitioner’s charges but was unable to do so. Counsel testified that when he began
preparing for trial, it was his opinion that the State would be unable to carry its burden of
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establishing the petitioner’s identity as one of the perpetrators. He said, “I didn’t think
anyone would be able to identify [the petitioner] based on what occurred at the
preliminary hearing.” Counsel could not recall whether he had discussed the discovery
materials with the petitioner in preparation for trial.

              With regard to the use of Mr. Self’s recantation, counsel testified,

              What I remember about Jeremy Self is obviously he had been
              charged and he had entered a plea and he got probation and
              he was going to be the main witness for the State . . . . the
              only person that could identify [the petitioner]. And then the
              document where Jeremy Self purportedly exonerated [the
              petitioner].

Counsel said that he did not interview Mr. Self because he “did not know . . . where to
begin to look for Mr. Self.” He did not issue a subpoena for Mr. Self.

               Counsel testified that the petitioner relayed to him the story of the
petitioner’s chasing his dog shortly before being apprehended by the police, but he could
not recall whether the petitioner’s mother corroborated the petitioner’s story. He said that
he did speak to the petitioner’s mother on the telephone and that she did not tell him that
she could provide the petitioner with an alibi. Counsel acknowledged that he did not
conduct any witness interviews prior to trial and candidly admitted that he would not
have called either of the petitioner’s co-defendants as witnesses under any circumstances.

               At the conclusion of the hearing, the post-conviction court took the petition
under advisement. The court denied relief via written order, holding that the petitioner
had failed to prove his allegations by clear and convincing evidence. The court found
that because the petitioner failed to present the testimony of either Mr. Self or his alleged
alibi witnesses at the evidentiary hearing, he could not establish that counsel performed
deficiently by failing to present these witnesses at trial. The court also found that the
petitioner failed to present any evidence to support his claims that counsel performed
deficiently by failing to move the trial court to suppress the identification made by
Officer Sean Kirby, by failing to produce the audio recording of the 9-1-1 call, by failing
to object to the introduction of a photograph at trial, by failing to inform the petitioner
that he could request a continuance of the sentencing hearing, or by failing to adequately
investigate the case. The court concluded that the petitioner’s testimony at the
evidentiary hearing belied his claim that trial counsel had failed to properly advise him of
the potential advantages and disadvantages of testifying at trial. With regard to the
petitioner’s claim that the convictions in this case violated his right to indictment by a

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grand jury, the court determined that, contrary to the petitioner’s belief, the charges
against him were never dismissed with prejudice.

              In this timely appeal, the petitioner contends that he was deprived of the
effective assistance of counsel at trial. Specifically, he claims that counsel performed
deficiently by failing to present alibi witnesses at trial and by failing to properly
investigate the facts of the case prior to trial. The State asserts that the post-conviction
court properly denied relief.

              We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “when the conviction or sentence is void or
voidable because of the abridgement of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. A post-
conviction petitioner bears the burden of proving his or her factual allegations by clear
and convincing evidence. Id. § 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).

              A claim of ineffective assistance of counsel, specifically, is a mixed
question of law and fact. See Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015); Lane
v. State, 316 S.W.3d 555, 562 (Tenn. 2010); State v. Honeycutt, 54 S.W.3d 762, 766-67
(Tenn. 2001). 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. Kendrick, 454 S.W.3d at 457; Fields, 40
S.W.3d at 457-58; see also State v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

               Before a petitioner will be granted post-conviction relief based upon a
claim of ineffective assistance of counsel, the record must affirmatively establish, via
facts clearly and convincingly established by the petitioner, 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
that counsel’s deficient performance “actually had an adverse effect on the defense,”
Strickland v. Washington, 466 U.S. 668, 693 (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 have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at
694. Should the petitioner fail to establish either deficient performance or prejudice, he is
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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 considering a claim of ineffective assistance of counsel, a reviewing
court “begins with the strong presumption that counsel provided adequate assistance and
used reasonable professional judgment to make all significant decisions,” Kendrick, 454
S.W.3d at 458 (citing Strickland, 466 U.S. at 689), and “[t]he petitioner bears the burden
of overcoming this presumption,” id. (citations omitted). 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).

               The petitioner first argues that trial counsel performed deficiently by failing
to present witnesses at trial to corroborate his alibi that he was out chasing his dog when
the burglary occurred. We need not tarry long over the petitioner’s claim because the
petitioner failed to present any of these witnesses at the evidentiary hearing. See Black v.
State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990) (holding that a post-conviction
petitioner generally fails to establish his claim that counsel did not properly investigate or
call a witness if he does not present the witness to the post-conviction court because a
post-conviction court may not speculate “on the question of . . . what a witness’s
testimony might have been if introduced” at trial).

               Similarly, the petitioner’s claim that counsel “failed to discover
independent exculpatory evidence and information which could have assisted” the
petitioner at trial must fail because the petitioner presented no “independent exculpatory
evidence and information” that trial counsel should have discovered. See id. (“When 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.”).

              Accordingly, the judgment of the post-conviction court denying relief is
affirmed.

                                                    _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE



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