        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                   Assigned on Briefs at Knoxville July 26, 2016

                   LARRY HUNT v. STATE OF TENNESSEE

               Appeal from the Criminal Court for Shelby County
              No. 00-12639, 00-12640, 0012641 Glenn Wright, Judge


             No. W2015-01836-CCA-R3-PC - Filed December 15, 2016


The Petitioner, Larry Hunt, appeals the Shelby County Criminal Court‟s denial of his
petition for post-conviction relief from his aggravated robbery, aggravated kidnapping,
and aggravated rape convictions, for which he is serving an effective thirty-two-year
sentence. He contends that he received the ineffective assistance of counsel. We affirm
the judgment of the post-conviction court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which THOMAS
T. WOODALL, P.J., and CAMILLE R. MCMULLEN, J., joined.

Juni S. Ganguli, Memphis, Tennessee, for the appellant, Larry Hunt.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; Carla Taylor, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

       The Petitioner‟s convictions relate to a robbery of a hotel and the sexual assault
and kidnapping of the victim, a hotel employee. The Petitioner was a former hotel
employee and had worked with the victim. At his first trial, the Petitioner was convicted
of aggravated robbery and aggravated kidnapping, but the jury was unable to reach a
verdict on the aggravated rape count. At a second trial, the Petitioner was convicted of
aggravated rape. The trial court imposed sentences of twenty-five years for aggravated
rape and twelve years each for aggravated robbery and aggravated kidnapping, and it
imposed partially consecutive sentences which yielded an effective thirty-seven year
sentence. On appeal, this court affirmed the Petitioner‟s aggravated robbery, aggravated
kidnapping, and aggravated rape convictions, vacated a conviction for a count that had
been dismissed by the State but for which a judgment of conviction had nevertheless been
entered, and modified the length of the sentences to twenty-two years for aggravated rape
and ten years each for aggravated robbery and aggravated kidnapping, for an effective
thirty-two-year sentence. See State v. Larry Hunt, No. W2003-01738-CCA-R3-CD, 2004
WL 2050284 (Tenn. Crim. App. Sept. 14, 2004), perm. app. denied (Tenn. May 23,
2005) (designated not for citation).

       The Petitioner filed a petition for post-conviction relief, in which he alleged he
received the ineffective assistance of counsel in the conviction proceedings. The post-
conviction court denied relief without making findings of fact or conclusions of law, and
this court reversed the judgment based upon the post-conviction court‟s failure to specify
the basis for its decision. Because the post-conviction judge was deceased by the time
this court adjudicated the appeal, this court remanded the case for a new hearing rather
than for the post-conviction court to make findings of facts and conclusions of law based
upon the previous hearing. Larry Hunt v. State, No. W2012-01682-CCA-R3-PC, 2013
WL 3991819 (Tenn. Crim. App. Aug. 2, 2013).

       At the hearing on remand, trial counsel testified that the allegations at the trial
involved the Petitioner‟s having gone to a hotel where he had been employed previously.
Counsel said the Petitioner told counsel that his intent had been to steal money and that
he had been surprised when he encountered the victim, who was returning from the
restroom. Counsel said that the Petitioner took the money and that the Petitioner and the
victim went to another part of the hotel, where the Petitioner digitally penetrated the
victim until noticing her tampon. Counsel said the Petitioner asked the victim where the
keys to a hotel van were and told the victim “they needed to take a ride.” After the victim
and the Petitioner struggled, the Petitioner forced the victim into the van and drove
around for thirty minutes to one hour before abandoning the van, which the victim drove
back to the hotel.

        Trial counsel testified that in his twenty-six years of law practice, he had filed
motions to suppress when he thought they had merit. He agreed that the better practice
was to file and litigate motions to suppress before a trial. He said, however, that the
Petitioner did not inform him until after the first trial of any police conduct to support a
motion to suppress. Counsel said that the trial judge agreed to hear a motion to suppress
at this late juncture, that the judge denied the motion, and that the judge stated his ruling
would have been the same had the motion been filed six months earlier.

       When asked about his decision not to have a defense investigator attempt to speak
to the victim, trial counsel testified that rape victims tended not to be forthcoming with
defense investigators. He said that he had a transcript of the preliminary hearing and that

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he considered “sworn testimony under cross examination at a preliminary hearing by a
trained attorney” to be sufficient investigation of the victim‟s account. He said that
witnesses sometimes told a defense investigator what the investigator “wanted to hear” in
order to have the investigator leave them alone. Counsel noted that the only witnesses
were the Petitioner and the victim.

       Trial counsel testified that his file reflected five or six jail visits with the
Petitioner.

       Trial counsel said the Petitioner did not testify at the trials and did not have an
alibi. Counsel agreed that vigorous cross-examination, primarily of the victim, was the
only available defense strategy. Counsel agreed that the Petitioner did not testify at either
trial. Counsel agreed that he attempted to cross-examine the victim vigorously on the
subject of sexual penetration. He said that the victim misunderstood that penetration of
any type could constitute the offense of rape and that he “tried to make hay” of her
having stated the victim “tried to rape” her.

       Trial counsel testified that he advised the Petitioner that if the Petitioner testified,
the Petitioner‟s prior robbery conviction could not be used to show propensity to commit
the present offenses but could be used to impeach the Petitioner‟s credibility. He noted
that the allegations related to the aggravated rape were a “he said/she said” scenario. He
said the Petitioner made the decision not to testify.

         Relative to the aggravated robbery and aggravated kidnapping convictions at the
first trial, trial counsel testified that he did not think State v. Anthony, 817 S.W.2d 299
(Tenn. 1991), overruled by State v. White, 362 S.W.3d 559, 578 (Tenn. 2012), applied to
the facts of the Petitioner‟s case. In counsel‟s view, the Petitioner‟s driving the victim
around Shelby County in a van following the robbery did not constitute a kidnapping
incidental to the robbery. Counsel said he advised the Petitioner that if the judge did not
rule that the kidnapping was incidental to the robbery, the Petitioner faced an eight to
twelve year sentence for each conviction and that the possibility of consecutive
sentencing meant the Petitioner faced an effective sentence of eight to twenty-four years
for the kidnapping and robbery offenses.
         Trial counsel testified that the only plea offer was for an effective twenty-five
years and that he advised the Petitioner of the offer. The plea offer consisted of a ten-
year sentence for aggravated robbery and fifteen year sentences for aggravated
kidnapping and aggravated rape. Counsel said the Petitioner refused to accept a plea
offer for the aggravated rape charge. Counsel said he advised the Petitioner of the
possible outcome of the case if the Petitioner went to trial instead of pleading guilty.
Counsel recalled that a voir dire examination of the Petitioner had taken place regarding

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the twenty-five-year plea offer. Counsel did not recall the State‟s having made an offer
of fifteen years for aggravated rape to be served concurrently with sentences imposed by
the trial court for the two offenses of which the Petitioner had been convicted at the first
trial.

       Trial counsel did not recall any conflicts between the Petitioner and himself.
Counsel said the Petitioner “was always a gentleman” but was adamant about having
intended only to steal money until the victim appeared on the scene. He recalled the
Petitioner making an outburst during the second trial, for which the Petitioner was
admonished by the court and for which the Petitioner apologized.

         Regarding the defense at the second trial, trial counsel testified that his strategy
involved highlighting the victim‟s having declined to have a medical examination after
the offenses. Counsel said he advised the Petitioner that if the Petitioner were convicted
of aggravated rape at the second trial, counsel did not expect the judge to order
concurrent sentences. Counsel noted that a police officer testified at the sentencing
hearing that the Petitioner‟s mother “made some disparaging remarks about [the
Petitioner‟s] behavior in the past generally,” that counsel objected, that the court stated it
would not consider this evidence unless the mother testified, and that the mother did not
testify.

       Assistant District Attorney General Steve Jones testified that he was the
prosecutor for the Petitioner‟s trials. General Jones testified that his file reflected the
twenty-five-year offer before the first trial. He said that although he had no recollection
of having made a fifteen-year offer for the aggravated rape charge before the second trial,
he had no reason to doubt defense counsel if counsel had testified as to the existence of a
fifteen-year offer. When shown an unspecified document, he agreed that the record
reflected that trial counsel had questioned the Petitioner on the record about the
Petitioner‟s knowledge of the existence of a fifteen-year offer for aggravated rape, to be
served concurrently with the sentences for the convictions from the first trial. General
Jones said that although he ultimately requested that all of the Petitioner‟s sentences be
imposed consecutively, the trial court imposed partially consecutive sentences.

       The Petitioner testified that he briefly met with trial counsel before court hearings
and that counsel visited him at the jail twice before the first trial. The Petitioner said he
told counsel that he did not penetrate the victim‟s vagina with his finger. He
acknowledged he did not have a defense to the robbery and kidnapping charges.

       The Petitioner testified that he asked trial counsel “on a few occasions” to have an
investigator speak to the victim about how she would testify. He said counsel never did

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so. The Petitioner said he filed three or four complaints about counsel with the Board of
Professional Responsibility because counsel failed to communicate with him. He said
that he asked the court to appoint a different attorney and that he considered proceeding
pro se but decided it would have been a “stupid mistake.”

      The Petitioner testified that the suppression hearing occurred after the second trial
and that he thought it was pointless and unfair because the officers he accused of
misconduct did not testify.

       The Petitioner acknowledged that between the first and second trials, the State
made a plea offer of fifteen years for aggravated rape, which he declined. He said that
although the State agreed to recommend that the sentences be imposed concurrently, he
rejected the offer because trial counsel said the judge might impose consecutive sentences
and because the Petitioner thought he had a “good chance” of not receiving “consecutive
sentences on everything” if he went to trial. He agreed that, ultimately, the judge
imposed the aggravated robbery and aggravated kidnapping sentences concurrently to
each other and consecutively to the aggravated rape conviction. He said he understood
that the judge could not legally impose consecutive sentences for aggravated kidnapping
and aggravated robbery. He said counsel told him he would likely receive consecutive
sentences for all of the offenses, that counsel failed to explain the relevant law to him
regarding the requirement that the aggravated kidnapping and aggravated robbery
sentences be imposed concurrently, and that as a result, he did not think he should accept
the plea offer. He acknowledged that counsel advised him of different possible outcomes
and that, ultimately, the decision to take the case to trial was the Petitioner‟s.

       The Petitioner testified that although the victim‟s trial testimony was similar to her
preliminary hearing testimony, unspecified differences existed.

        After receiving the proof, the post-conviction court filed a written order denying
relief. This appeal followed.

       Post-conviction relief is available “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 (2012). A
petitioner has the burden of proving his factual allegations by clear and convincing
evidence. Id. § 40-30-110(f) (2012). A post-conviction court‟s findings of fact are
binding on appeal, and this court must defer to them “unless the evidence in the record
preponderates against those findings.” Henley v. State, 960 S.W.2d 572, 578 (Tenn.
1997); see Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction
court‟s application of law to its factual findings is subject to a de novo standard of review

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without a presumption of correctness. Fields, 40 S.W.3d at 457-58.

       To establish a post-conviction claim of the ineffective assistance of counsel in
violation of the Sixth Amendment, a petitioner has the burden of proving that (1)
counsel‟s performance was deficient and (2) the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell,
506 U.S. 364, 368-72 (1993). The Tennessee Supreme Court has applied the Strickland
standard to an accused‟s right to counsel under article I, section 9 of the Tennessee
Constitution. See State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

       A petitioner must satisfy both prongs of the Strickland test in order to prevail in an
ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). To establish the
performance prong, a petitioner must show that “the advice given, or the services
rendered . . . , are [not] within the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466 U.S. at
690. The post-conviction court must determine if these acts or omissions, viewed in light
of all of the circumstances, fell “outside the wide range of professionally competent
assistance.” Strickland, 466 U.S. at 690. A petitioner “is not entitled to the benefit of
hindsight, may not second-guess a reasonably based trial strategy by his counsel, and
cannot criticize a sound, but unsuccessful, tactical decision.” Adkins v. State, 911 S.W.2d
334, 347 (Tenn. Crim. App. 1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn.
2008). This deference, however, only applies “if the choices are informed . . . based upon
adequate preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
To establish the prejudice prong, a 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.” Strickland, 466 U.S. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.

                                              I

                                Failure to Prepare for Trial

       The Petitioner contends that trial counsel failed to prepare adequately for trial
because counsel relied on the victim‟s preliminary hearing testimony without trying to
interview her personally or through an investigator. The State counters that counsel‟s
performance was not deficient and that the Petitioner failed to show prejudice.



                                             -6-
        We note, first, that this issue was not raised in either of the amended post-
conviction petitions in the record of the present appeal, nor was it raised in the original
petition and multiple amended petitions in the record of the previous appeal. The
Petitioner alleged that trial counsel had been ineffective in his cross-examination of the
victim at the second trial relative to the issue of penetration, but the Petitioner made no
allegations relative to counsel‟s pretrial investigation of the victim‟s testimony. In its
order denying relief from which the present appeal was taken, the post-conviction court
did not make findings of fact or conclusions of law relevant to this issue. We conclude
that the issue is waived and, therefore, is not properly before this court for appellate
review. See, e.g., Cauthern v. State, 145 S.W.3d 571, 599 (Tenn. 2004) ([A]n issue
raised for the first time on appeal is waived.”). In reaching this conclusion, we are
mindful that this court noted the issues raised by the Petitioner in the opinion in the
Petitioner‟s first post-conviction appeal and that those issues included ineffective
assistance of counsel because trial counsel “failed to investigate the facts of the case and
failed to interview the victim.” See Larry Hunt, 2013 WL 3991819, at *3. This court
likewise noted that the post-conviction court failed to make findings of fact and
conclusions of law relative to any issues presented at the post-conviction hearing and that
the post-conviction judge was deceased. Id. This court remanded the case for a new
hearing, proper factual findings, and legal conclusions. Id. The court did not, however,
address the merits of the issues raised in the appeal or whether the issues had been raised
in the post-conviction court. Id. As we have stated, our review of the petition and
amended petitions reflects that the issue was not raised below, and consideration of it at
this juncture is waived.

                                             II

                    Failure to Pursue a Pretrial Motion to Suppress

        The Petitioner contends that trial counsel provided ineffective assistance by failing
to file a pretrial motion to suppress evidence of the Petitioner‟s statement to the police on
the basis that the statement had been coerced. The State counters that counsel did not
provide ineffective assistance in failing to pursue a motion to suppress because the
Petitioner did not make allegations regarding police coercion of the statement until after
the first trial had occurred.

        As with the previous issue, this allegation was not raised in any of the petitions in
the record of this appeal or of the previous appeal. Although the Petitioner alleged that
trial counsel had been ineffective in failing to file a motion to suppress, this allegation
was based on counsel‟s failure to seek, at the second trial for aggravated rape,
suppression of evidence from the confession of the aggravated robbery and aggravated

                                             -7-
kidnapping of which the Petitioner had been convicted at the first trial. The Petitioner
alleged that the evidence from the statement should have been suppressed on the basis
that proof of the aggravated robbery and aggravated kidnapping was irrelevant and
unfairly prejudicial at the aggravated rape trial. The post-conviction court did not make
findings of fact or conclusions of law relative to the issue the Petitioner has now raised
regarding ineffective assistance in failure to seek suppression of the statement because it
was the product of police coercion. Our consideration of this issue is waived. Id.

                                            III

                          Advice Regarding Settlement Offer

        The Petitioner contends that trial counsel failed to explain the fifteen-year
settlement offer for aggravated rape after the first trial. He acknowledges that counsel
advised him of the offer but complains that counsel failed to advise him to accept it. He
argues that if he had accepted the offer, his sentence “would have been „capped‟ at 15
years: due to legal considerations, the sentences for aggravated robbery and aggravated
kidnapping could not be sentenced consecutively” and that counsel failed to advise him
of this fact. The State counters that the post-conviction court properly denied relief.

        As we have noted, the Petitioner testified at the post-conviction hearing that trial
counsel advised him of a twenty-five-year offer. Counsel testified that he had advised the
Petitioner of the offer and about the possibility of consecutive sentencing, based upon
counsel‟s understanding of then-existing law, if the Petitioner chose to proceed to trial on
the aggravated rape. See Anthony, 817 S.W.2d 299. Counsel said that in his opinion, the
facts of the Petitioner‟s case, which involved the Petitioner‟s driving the victim around in
a van following the robbery, did not support a conclusion that the kidnapping had been
incidental to the robbery, with the result being that consecutive sentencing would be an
alternative available to the trial court. Counsel testified that the Petitioner was adamant
about not pleading guilty to aggravated rape. Although the Petitioner testified about his
dissatisfaction with counsel‟s advice, he never stated in his hearing testimony that he
would have pleaded guilty to the rape charge or otherwise controverted counsel‟s
testimony that the Petitioner was adamant about not pleading guilty to the aggravated
rape charge because the Petitioner insisted he was not guilty.

       General Jones testified that an unspecified portion of the record reflected that the
Petitioner was questioned on the record by trial counsel about the Petitioner‟s knowledge
of the offer for a fifteen-year sentence for aggravated rape and concurrent sentencing
with the offenses of which the Petitioner had been convicted at the first trial. The record
likewise reflects that the Petitioner was aware of the possibility of consecutive sentencing

                                            -8-
if he proceeded to trial on the aggravated rape charge. He was also aware that he
remained in jeopardy of consecutive sentencing for the aggravated robbery and
aggravated kidnapping convictions.

       We have reviewed the voir dire of the Petitioner at the second trial regarding the
plea offer. The Petitioner acknowledged that he had been convicted of two offenses, each
of which had an eight to twelve-year sentencing range, and that he faced the possibility of
an effective twenty-four years for the offenses if the court imposed consecutive
sentencing. He agreed that he was aware the prosecutor had offered a fifteen-year
sentence if the Petitioner pleaded guilty to aggravated rape, and he acknowledged that the
prosecutor would recommend concurrent service of the fifteen-year sentence with
“anything [the Petitioner] might receive on the two indictments upon which [he] stood
convicted.” The Petitioner agreed that he had rejected the plea offer.

       The record reflects that the Petitioner received a fifteen-year offer for aggravated
rape and that the prosecutor agreed to recommend the aggravated rape sentence be served
concurrently to the other sentences. The record reflects, however, that had the Petitioner
accepted the plea offer, he nevertheless remained in jeopardy of consecutive sentencing
for the aggravated robbery and aggravated kidnapping convictions. Contrary to his
claim, the Petitioner was not offered an effective fifteen-year sentence for all three
offenses. The Petitioner failed to carry his burden of establishing deficient performance
by counsel and prejudice from counsel‟s actions. The post-conviction court did not err
in denying relief on this basis.

       In reaching this conclusion, we have not overlooked the Petitioner‟s argument that
his effective sentence would have been “capped” at fifteen years as a matter of law if he
had accepted the plea offer. In his brief, the Petitioner has not identified the legal basis
upon which he relies for the proposition that the sentence was “capped” at fifteen years.
To the extent he may imply that Anthony dictated this result, we disagree. See id.

                                            IV

                     Cumulative Errors and Omissions of Counsel

       The Petitioner contends that trial counsel‟s errors and omissions, considered
cumulatively, resulted in the Petitioner‟s receiving the ineffective assistance of counsel.
As the State notes, the Petitioner failed to prove his allegations at the post-conviction
hearing. On appeal, he has failed to demonstrate error in the post-conviction court‟s
determinations in this regard. He is not entitled to relief on this basis.


                                            -9-
       In consideration of the foregoing and the record as a whole, the judgment of the
post-conviction court is affirmed.

                                          _____________________________________
                                           ROBERT H. MONTGOMERY, JR., JUDGE




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