        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs November 23, 2010

                  DEARICE CATES v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Knox County
                    No. 92576     Richard R. Baumgartner, Judge


                  No. E2010-00812-CCA-R3-PC Filed March 23, 2011




The Petitioner, Dearice Cates, appeals as of right from the Knox County Criminal Court’s
denial of his petition for post-conviction relief. The Petitioner contends that he received the
ineffective assistance of both trial and appellate counsel for failing to raise the statutorily
mandated mitigating factor that he “voluntarily” released the victims of his especially
aggravated kidnappings alive. See Tenn. Code Ann. § 39-13-305(b)(2). Following our
review, we affirm the judgment of the post-conviction court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which D AVID H. W ELLES and
N ORMA M CG EE O GLE, JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Dearice Cates.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Randall Eugene Nichols, District Attorney General; and Ta Kisha M. Fitzgerald,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

       The Petitioner was convicted by a jury of three counts of especially aggravated
kidnapping, one count of aggravated robbery, one count of attempted aggravated robbery,
one count of assault, and one count of aggravated burglary and received an effective sentence
of 24 years. State v. Dearice Cates, No. E2006-02553-CCA-R3-CD, 2008 WL 220264, at
*1 (Tenn. Crim. App. Jan. 28, 2008), perm. app. denied (Tenn. Sept. 22, 2008). On the night
of July 24, 2005, the Petitioner, along with a codefendant, entered the home of Tiffany
Dailey and her two children while they were sleeping. Id. The Petitioner woke Ms. Dailey
by saying “B---h, get up” and pointing a gun at her face. Id. The Petitioner demanded
money and ordered Ms. Dailey to walk through the house looking for money. Id. Ms. Dailey
found both of her children in her bedroom where the codefendant was pointing a gun at her
daughter’s head. Id. The Petitioner “continued to demand money from Ms. Dailey, but he
and the codefendant exited the room when they felt the vibration from a nearby train.” Id.
Ms. Dailey and her children fled to a neighbor’s home where they called the police. Id. Ms.
Dailey’s son testified that he saw the Petitioner take eight dollars he had been given as a
birthday present and that the Petitioner and codefendant “were frightened by the train noise
and left the bedroom.” Id. at *2.

        Following the jury verdict, the trial court granted the Petitioner’s motion for judgment
of acquittal regarding the three especially aggravated kidnapping convictions. Cates, 2008
WL 220264 at *1. The trial court ruled that “the movement or confinement supporting each
kidnapping conviction was essentially incidental to the commission of the robbery.” Id.
However, on appeal this court reinstated two of those convictions and affirmed the judgments
of the trial court in all other respects. Id.

        On August 26, 2009, the Petitioner filed a pro se petition for post-conviction relief.
The post-conviction court appointed counsel and an amended petition was filed on February
12, 2010. A hearing was held on March 11, 2010, during which no proof was presented, only
the arguments of counsel. During the hearing, Petitioner’s counsel argued that trial counsel
failed to raise the statutorily mandated mitigating factor that the Petitioner “voluntarily”
released the victims of his especially aggravated kidnappings alive. Petitioner’s counsel
argued that this mitigating factor “should be given a substantial amount of weight at
sentencing” and that the Petitioner was prejudiced by not having this factor raised at
sentencing or on appeal. In response, the State argued that at the time of the sentencing the
Petitioner had a significant criminal history, which was given great weight by the trial court.
The State also asserted that the Petitioner never actually released the victims but that the
Petitioner fled when he heard a train passing by the house.

        The post-conviction court denied relief on this issue, concluding that consideration
of the statutorily mandated mitigating factor would not have altered the sentence.1 The post-
conviction court noted that a significant amount of weight was given to the Petitioner’s
criminal record. The post-conviction court also stated that Ms. Dailey was “terrorized” by
having a gun put in her face, as were her children. According to the post-conviction court,
Ms. Dailey’s son “was so frightened” that he “soiled himself.” The post-conviction court


1
 In both the original pro se petition and the amended petition, the Petitioner raised numerous issues. The
post-conviction court denied relief on all the issues raised by the Petitioner. However, the Petitioner only
challenges the post-conviction court’s decision regarding the sentencing issue on appeal.

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concluded that this was given great weight by the trial court as well. Additionally, the post-
conviction court concluded that the Petitioner left because he was “frightened” by the train
and not “out of some altruistic motive to help [the victims] out.” Accordingly, the post-
conviction court concluded that no prejudice resulted from trial and appellate counsel’s
failure to raise the issue.

                                         ANALYSIS

        On appeal, both the arguments of the Petitioner and the State track those made at the
post-conviction hearing. The Petitioner contends that the post-conviction court erred in
denying his petition with regards to the issue of the statutorily mandated mitigating factor
that he “voluntarily” released the victims of his especially aggravated kidnappings alive. The
Petitioner argues that because this factor “is specific to the offense, it should be given
particular weight in sentencing” and that this factor would have significant weight because
he “released all victims both alive and mostly unharmed.” The State responds that the
Petitioner has failed to show that trial counsel was deficient and that he would have received
a lesser sentence but for this alleged deficiency. The State further responds that the
mitigating factor was not applicable to the Petitioner’s case and even if it was applicable,
raising it would not have altered his sentence in light of the Petitioner’s criminal history and
the facts of the offense.

       The burden in a post-conviction proceeding is on the petitioner to prove his
allegations of fact supporting his grounds for relief by clear and convincing evidence. Tenn.
Code Ann. § 40-30-110(f); see Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009).
On appeal, we are bound by the post-conviction court’s findings of fact unless we conclude
that the evidence in the record preponderates against those findings. Fields v. State, 40
S.W.3d 450, 456 (Tenn. 2001). Because they relate to mixed questions of law and fact, we
review the post-conviction court’s conclusions as to whether counsel’s performance was
deficient and whether that deficiency was prejudicial under a de novo standard with no
presumption of correctness. Id. at 457.

       Under the Sixth Amendment to the United States Constitution, when a claim of
ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that
counsel’s performance was deficient and (2) that the deficiency was prejudicial. Strickland
v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72
(1993). In other words, a showing that counsel’s performance falls below a reasonable
standard is not enough; rather, the petitioner must also show that but for the substandard
performance, “the result of the proceeding would have been different.” Strickland, 466 U.S.
at 694. The Strickland standard has been applied to the right to counsel under article I,



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section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn.
1989).

       Tennessee Code Annotated section 39-13-304(b)(2) provides that when a defendant
convicted of aggravated kidnapping “has voluntarily release[d] the victim alive” then “such
actions shall be considered by the court as a mitigating factor at the time of sentencing.”
This section reflects the legislature’s “concern for the safety of the victim” and requires the
sentencing court to consider “the voluntary safe release of the victim as a mitigating factor”
Tenn. Code Ann. § 39-13-304(b)(2), Sentencing Comm’n Cmts. However, this mitigating
factor will not be applied when “the record is devoid of proof to support [the] [d]efendant’s
claim that he released the victim ‘voluntarily.’” State v. Taylor, 63 S.W.3d 400, 412 (Tenn.
Crim. App. 2001).

       In Taylor, a panel of this court concluded that section 39-13-304(b)(2) did not apply
when the victim fled the house while the defendant was looking away. Id. at 404. This court
concluded that “the victim’s ‘release’ was due only to his successful escape.” Id. at 412. We
agree with the post-conviction court that the Petitioner and his codefendant did not
“voluntarily release” the victims. Instead, much like the facts in Taylor, the victims fled to
a neighbor’s house after the Petitioner and his codefendant were startled by a train and left
the room. Additionally, the post-conviction court concluded that even if section 39-13-
304(b)(2) were applied to this case, its application would not have altered the sentence given
the facts surrounding the offense, the Petitioner’s criminal history, and the reason the
Petitioner left the house. The Petitioner has not presented any evidence beyond the argument
of counsel that he was prejudiced by trial and appellate counsel’s failure to raise this issue.
Accordingly, we conclude that the post-conviction court did not err in denying the petition
for post-conviction relief.

                                       CONCLUSION

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




                                                    _________________________________
                                                    D. KELLY THOMAS, JR., JUDGE




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