        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                Assigned on Briefs at Knoxville November 17, 2015

                 ANDRA TAYLOR v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Madison County
                      No. C-14-262 Donald H. Allen, Judge


              No. W2015-00744-CCA-R3-PC - Filed February 3, 2016


The Petitioner, Andra Taylor, appeals the Madison County Circuit Court’s denial of his
petition for post-conviction relief from his 2012 convictions for aggravated burglary,
employing a firearm during the commission of a dangerous felony, and two counts of
reckless endangerment involving a deadly weapon, for which he is serving an effective
fourteen-year sentence. The Petitioner contends that the post-conviction court erred by
denying him relief due to the ineffective assistance of counsel in the conviction
proceedings. We affirm the judgment of the post-conviction court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS and ROGER A. PAGE, JJ., joined.

George Morton Googe, District Public Defender; and Gregory D. Gookin, Assistant
District Public Defender, for the appellant, Andra Taylor.

Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Counsel;
James G. (Jerry) Woodall, District Attorney General; Brian M. Gilliam, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                       OPINION

       The Petitioner’s convictions relate to events at an apartment at which the
Petitioner had used drugs earlier in the evening. The State’s evidence showed that after
having been at the apartment, the Petitioner returned with a handgun, which he fired at
Freddy Jones. Mr. Jones was struck in the stomach. The Petitioner said the shot had
been a “warning shot,” demanded money, and said the next shot would be “for real.”
State v. Andra L. Taylor, No. W2012-01660-CCA-R3-CD, 2013 WL 5777253, at *1-2
(Tenn. Crim. App. Oct. 25, 2013).
       Although the Petitioner did not testify at his trial, his pretrial statement was
admitted as evidence. In it, he stated he went to the apartment with Willie Smith to
retrieve some stereo equipment that Mr. Smith had stolen previously from the Petitioner.
The Petitioner said that he had taken a gun but that he left it outside while visiting inside
the apartment. The Petitioner stated that he later went outside to get the gun, that he
returned to the apartment, and that he went to a bedroom where three individuals were
using methamphetamine. He stated that as he walked into the bedroom, he raised his arm
and that the gun fired without his pulling the trigger. The Petitioner denied taking money
that one of the people in the bedroom had thrown onto the bed but acknowledged taking
methamphetamine from the apartment. Id. at *2.

       The Petitioner was convicted following a jury trial, and after his unsuccessful
appeal, he filed the present post-conviction action alleging he received the ineffective
assistance of counsel in numerous respects. This appeal relates to three of these
allegations: (1) trial counsel’s failure to file a motion to suppress the Petitioner’s pretrial
statement, (2) counsel’s failure to move for the trial judge to recuse himself based upon
the judge’s prior acquaintance with the victim, and (3) counsel’s having “essentially
coerced” the Petitioner not to testify. Our recitation of the evidence presented at the post-
conviction hearing is limited to those facts relevant to these allegations.

       The Petitioner testified that trial counsel did not file a motion to suppress the
Petitioner’s unsigned pretrial statement. The Petitioner agreed the statement was read
into evidence. He said the police officer who interviewed him and took his statement
used “bits and pieces” of the interview in the written statement. The Petitioner said that
he discussed a motion to suppress with counsel but that counsel advised him no basis
existed in Tennessee law for suppression based upon the lack of the Petitioner’s signature
on the statement. The Petitioner said counsel told him that in challenging whether the
statement accurately reflected what the Petitioner said to the officer, it would be a matter
of the officer’s word against the Petitioner’s.

       The Petitioner testified that the recusal issue arose when the trial judge commented
that he and the victim had attended school together. The Petitioner said that at the time,
he did not ask trial counsel about having a different judge for the case. The Petitioner
said that his uncle “got in [counsel’s] face about a couple of things” and that his uncle
told him about the issue later. The Petitioner thought his uncle “was saying things,” but
he realized the issue later when he had the opportunity to research the issue in a law
library. The Petitioner said counsel never asked the judge to recuse himself.



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        The Petitioner testified that at the conclusion of the State’s proof, he and trial
counsel discussed whether the Petitioner would testify. The Petitioner said that initially,
counsel wanted him to testify but that the Petitioner did not want to testify. He said
counsel wanted him to tell his side of the story. The Petitioner said that after they had
seen the State’s proof, he changed his mind and communicated his desire to testify to
counsel but that “[Counsel] was saying it probably wasn’t no good time to say nothing
anyway.” The Petitioner said he made his desire to testify clear to counsel. The
Petitioner acknowledged he had signed a waiver of his right to testify in front of the trial
court. He recalled the court’s having advised him of his right to testify and of the fact
that it was his choice and not his attorney’s whether he testified. The Petitioner thought
he had been advised that if he testified and was convicted, his sentence would be
determined by the jury, not the court.

       The Petitioner testified that if he had taken the stand at his trial, he could have
explained the facts relative to the aggravated burglary charge. He said he did not forcibly
enter the apartment. He said he went to the apartment with Mr. Smith twice and thought
it was a “friendly house.” He said that during his first visit, the victim told him the
apartment was the victim’s and that the Petitioner knocked and was admitted during the
second visit. The Petitioner said he knew a burglary conviction was a predicate to a
conviction for the possession of a firearm during the commission of a dangerous felony.
He said that when he tried to get counsel “to say something about the burglary,” counsel
did not.

       The Petitioner explained that had he testified at his trial, he would have said the
gun Mr. Smith gave him was a “piece of crap and just went off.” The Petitioner said he
did not try to shoot the victim. He noted that witnesses testified about his remorse and
said he thought the jury believed he had not intended to shoot the victim because it
convicted him of lesser included offenses.

       Relative to the aggravated robbery charge of which he was acquitted, the
Petitioner testified that he did not take anything from the apartment during the incident.
He noted the conflicting trial testimony about whether he took anything.

       The Petitioner testified that although he lived in Illinois before the trial, he was
able to see trial counsel “quite regularly.” He said that he was unable to meet with
counsel a couple of times when counsel requested but that they talked by telephone.
When the Petitioner was questioned about his desire for counsel to have obtained a
favorable plea offer from the State, the Petitioner said that counsel “really is a good
attorney.”


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        Trial counsel testified that to the best of his recollection, the Petitioner had signed
a waiver of his Miranda rights but had refused to sign the written summary of the oral
statement the Petitioner gave the police. Counsel said the Petitioner had the inaccurate
impression that an unsigned pretrial statement could not be used as evidence. Counsel
said he advised the Petitioner that if a person waived his rights and made oral statements
or gave an unsigned written statement, the statement could be used against the person.
Counsel said that if any issue had existed regarding the admissibility of the unsigned
statement, he would have filed a motion to suppress. He said his practice was to obtain a
copy of the signed waiver of rights and to ask the client if the client signed it. Counsel
said that his practice was to question the client about the circumstances surrounding the
client’s signing a waiver of rights. Counsel said his practice also was to ask the client
whether the statement accurately reflected what the client said. Counsel said that if a
discrepancy existed, his practice was to file a motion to suppress. Counsel said he and
the Petitioner discussed the lack of a signature as bearing on the weight to be given to the
statement. Counsel said he cross-examined the officer who obtained the statement about
whether the officer had answered the Petitioner’s questions about whether the statement
would be used against the Petitioner and that the officer testified he “just didn’t answer
that question anymore.” Counsel said that in hindsight, he wished he had filed a motion
to suppress in order to satisfy the Petitioner’s desire to have a hearing, even though
counsel did not think such a motion would have had merit.

        Relative to the recusal issue, trial counsel testified that during a jury-out hearing,
Mr. Jones said something to the trial judge and that the judge responded by stating he
thought he knew Mr. Jones from school. Counsel testified that he knew Mr. Jones, as
well, and that Mr. Jones was a long-time Jackson resident. Counsel said he did not
request a recusal and did not think any prejudice to the Petitioner existed. Counsel said
that if the judge had made comments in front of the jury that could have influenced the
outcome of the trial, counsel would have requested that the judge recuse himself.

        Trial counsel testified that he advised the Petitioner to keep an open mind about
whether the Petitioner should testify at the trial. Counsel said that initially, the Petitioner
did not want to testify. Counsel said that as the trial progressed, they discussed whether
the Petitioner would testify. Counsel said that the Petitioner decided not to testify and
that counsel did not force or coerce the Petitioner into making this decision. Counsel said
the trial judge gave them a few minutes for a final discussion before the Petitioner signed
the waiver of his right to testify. Counsel said he did not tell the Petitioner that the judge
or the jury would treat the Petitioner differently if the Petitioner testified.

      Trial counsel testified that although the Petitioner lived in Illinois while the
charges were pending, counsel and the Petitioner met several times and talked by

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telephone. Counsel said that he and the Petitioner discussed the burglary charge several
times, that the State’s allegation was that the Petitioner reentered the apartment without
permission after having visited twice with permission, and that counsel advised the
Petitioner that “aggravated burglary didn’t necessarily involve breaking in or kicking the
door in.” Counsel said that the Petitioner was always courteous and polite and that the
Petitioner asked questions. Counsel said the Petitioner stated repeatedly, “I know you
will do your job.”

        Relative to the recusal issue, the post-conviction judge, who had also served as the
trial judge, stated that he and Mr. Jones attended elementary school together in the 1960s
but were not the same age. The judge did not think the Petitioner was prejudiced by the
judge’s prior acquaintance with Mr. Jones. The judge thought that he might have
prosecuted Mr. Jones in the late 1980s or early 1990s when the judge was an assistant
district attorney general.

       After the hearing, the post-conviction court denied 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
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

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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

        The Petitioner contends that trial counsel provided ineffective assistance by failing
to file a motion to suppress the Petitioner’s pretrial statement. The State counters that the
Petitioner failed to establish his ineffective assistance of counsel claim because he did not
show a basis for suppressing the evidence. We agree with the State.

       Relative to this allegation, the post-conviction court found:

       [T]he [Petitioner] claims that his “oral” statement to the Investigator was
       not signed by him, but he does not deny that he made the statement to the
       law enforcement officer. He claims his attorney was ineffective by not
       challenging this “oral” statement to police. Investigator Aubrey Richardson
       testified at trial that he advised the [Petitioner] of his constitutional
       (Miranda) rights before beginning the interview, that the defendant
       voluntarily and knowingly signed the written waiver form indicating his
       willingness to give a statement to the officer. Investigator Richardson
       further testified that the [Petitioner] was agreeable and willing to speak and
       give a statement to him, but did not want to sign or give a “written”
       statement.

             The Court finds that the claim of ineffective assistance of trial
       counsel for not challenging this “oral statement” to police is without merit.
       The petitioner does not deny that he gave this statement about what

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       happened to the officer, he does not deny that he went to this apartment
       twice looking for property, he does not deny that he carried a gun into the
       apartment, he does not deny that he pulled out his gun and fired a shot
       inside the apartment which struck one of the occupants being Freddy Jones,
       a person that he knew. The fact that the [Petitioner] didn’t “sign” this
       “oral” statement to police does not mean that his statement should be
       suppressed. The claim is without merit.

       The record reflects that trial counsel and the Petitioner discussed the
circumstances surrounding the Petitioner’s signing the Miranda waiver and giving the
oral statement. Counsel testified that although the Petitioner thought the lack of a
signature was significant, counsel said that he was unaware of a legal basis upon which to
seek suppression and that if any basis had existed, he would have filed a motion to
suppress. The Petitioner acknowledged signing the document memorializing his waiver
of his Miranda rights, and although he said the police officer who created the written
summary of the Petitioner’s oral statement used “bits and pieces,” the Petitioner did not
deny the contents of the statement itself. At the hearing, the Petitioner did not advance a
legal basis for suppression of the statement, and he has not articulated one in his appellate
brief. The Petitioner failed to show deficient performance and any prejudice from the
alleged deficiency, and he is not entitled to relief on this basis.

                                             II

        The Petitioner contends that he received the ineffective assistance of counsel due
to trial counsel’s failure to move for a recusal based upon the judge’s prior acquaintance
with a State’s witness. The State contends that the record supports the post-conviction
court’s determination. We agree with the State.

       Relative to this issue, the post-conviction court found:

       [T]he petitioner claims that . . . trial counsel was ineffective by “failing to
       challenge the recusal of the Judge.” Defendant admits under oath that he
       was “not innocent” of all of the charges for which he was convicted and
       that he had in fact possessed a gun which “just went off” when he pulled it
       out. He admits that he shot Freddy Jones inside the apartment and was
       sorry that he shot him. He claims he didn’t “force entry” into the apartment
       and didn’t take any property. He testified that he was interested in a guilty
       plea deal, but didn’t want to plead guilty to all charges. He admitted that he
       signed his Miranda rights waiver, that he met with his retained attorney
       [quite] regularly, and that [trial counsel] is a “really good attorney.”

                                             -7-
              [Trial counsel] testified that he didn’t ask for a recusal of the trial
       judge under the circumstances . . . . The Court credits [counsel’s]
       testimony that there was no basis . . . to file a motion for recusal of the trial
       judge.

        The record reflects that the trial judge and the victim, who were not the same age,
went to elementary school together. The judge thought he might have prosecuted the
victim many years earlier when the judge was an assistant district attorney general. Trial
counsel saw no reason to request a recusal based upon the judge and the victim’s prior
acquaintance. The Petitioner offered no evidence at the post-conviction hearing that the
prior acquaintance created any bias in favor of the victim or prejudice against the
Petitioner that would have had any effect on the judge’s ability to conduct the Petitioner’s
trial impartially. The post-conviction court did not err in determining that Petitioner
failed to prove deficient performance and prejudice from any alleged deficiency. The
Petitioner is not entitled to relief on this basis.

                                              III

      The Petitioner contends that he received the ineffective assistance of counsel
because trial counsel “essentially coerced” the Petitioner not to testify. The State
counters that the Petitioner failed to prove this claim. We agree with the State.

       Relative to this issue, the post-conviction court found:

       [The Petitioner] claims that his attorney “coerced him” to decide not to
       testify at trial, even though he contradicted himself by stating under oath at
       the post conviction hearing that he did not want to testify at his trial as well.
       . . . [T]he trial transcript indicates that the Court fully advised the petitioner
       concerning his right to testify at his trial and that the [Petitioner] stated
       under oath before the Court that he was choosing “not to testify,” which
       was his “decision” to make. [The Petitioner] even signed and executed at
       the conclusion of the State’s case in chief a written “Waiver of His Right to
       Testify” which the Court questioned him about in open Court. This Court
       finds that the [Petitioner] voluntarily and personally waived his right to
       testify and understood completely that it was his decision to make. The
       Court finds that the claim is without any merit. The [Petitioner] certainly
       was not “coerced” into choosing not to testify at trial.

              ....

                                              -8-
              [Trial counsel] testified . . . that he did not prevent or coerce [the
       Petitioner] into choosing not to testify at trial.

        The record reflects that trial counsel conferred with the Petitioner about the
Petitioner’s right to testify before and during the trial and that although the Petitioner
initially did not want to testify, counsel advised the Petitioner to keep an open mind until
the proof developed. The Petitioner testified that although he communicated his desire
to testify to counsel, counsel told him it would be better if the Petitioner did not testify.

       We have reviewed the record of the trial proceedings, which reflects that the trial
court advised the Petitioner of the Petitioner’s right to present proof in his defense,
including the right to testify or not to testify. The court advised the Petitioner that the
choice was the Petitioner’s, not counsel’s. The court took a recess in order for counsel
and the Petitioner to confer. After the proceedings resumed, counsel announced that the
Petitioner elected not to testify. The court then examined the Petitioner under oath about
his understanding of his waiver of the right to testify, and the Petitioner acknowledged
that he had chosen not to testify and that the decision was his. The post-conviction court
rejected the Petitioner’s testimony to the contrary and credited the countervailing proof.

       The evidence does not preponderate against the post-conviction court’s
determination that the Petitioner was not coerced into making the decision not to testify.
The Petitioner failed to show deficient performance and any prejudice from the alleged
deficiency, and he is not entitled to relief on this basis.

       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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