                                                                                       06/10/2019
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                       Assigned on Briefs December 11, 2018

          DENVER JOE MCMATH, JR. v. STATE OF TENNESSEE

               Appeal from the Criminal Court for Davidson County
                    No. 2009-A-419    Monte Watkins, Judge
                    ___________________________________

                          No. M2017-02426-CCA-R3-PC
                      ___________________________________


The petitioner, Denver Joe McMath, Jr., appeals the denial of his post-conviction
petition, arguing the post-conviction court erred in finding he received effective
assistance of counsel at trial and on appeal. After our review of the record, briefs, and
applicable law, we affirm the denial of the petition.

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

J. ROSS DYER, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR.
and CAMILLE R. MCMULLEN, JJ., joined.

Leah R. Wilson, Nashville, Tennessee, for the appellant, Denver Joe McMath, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Assistant Attorney General; Glenn R. Funk, District Attorney General; and Deborah
Housel, Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                 Factual Background

                                         Trial

        The petitioner was convicted of four counts of aggravated sexual battery and four
counts of rape of a child for which he received an effective sentence of 140 years. On
direct appeal of his convictions, this Court summarized the relevant facts as follows:

            The victim was born on September 5, 1990. [The petitioner] was her
      mother’s boyfriend and the father of her younger half-brother. At the time
of the crimes, the victim lived with [the petitioner], her mother, her half-
brother, her two sisters, and her older brother.

       The victim recalled that the first incident happened during the winter
of her fourth grade year. She testified that [the petitioner] told her to come
into his bedroom and sit beside him on the bed. [The petitioner] kissed the
victim, inserting his tongue into her mouth, and then gave her some
coloring books. On another occasion, [the petitioner] went into the victim’s
bedroom and touched her breasts, with his hand on top of her clothes, while
she was sleeping in her bed. The victim testified that one night, “late at
night,” [the petitioner] went into her bedroom where she and her twin sister
were sleeping, and performed oral sex on her. She testified that [the
petitioner] pulled her pants down and put his mouth on her vagina.

       The victim recalled an incident when she was in the sixth grade and
[the petitioner] made her perform oral sex on him in the laundry room of
their house. The victim did not know what oral sex was, and [the
petitioner] told her to “put [her] mouth on it, and [she] had no choice.” The
victim testified that it happened “[a] lot.” She testified that [the petitioner]
ejaculated in her mouth. She testified that she was afraid that if she did not
do as [the petitioner] told her, [the petitioner] would beat her. She testified,
“he always beat[ ] us.” The victim testified that she could not count the
number of times she performed oral sex on [the petitioner]. She recalled
the incident in the laundry room and another occasion in the kitchen. On
one occasion, her older brother walked into the laundry room while the
victim was performing oral sex on [the petitioner], and [the petitioner] “just
started beating him.”

       The victim also testified that [the petitioner] called her downstairs to
watch pornography with him. She testified that [the petitioner] was
masturbating while watching two people on television have sex. [The
petitioner] then told the victim to go to the laundry room, where he made
her perform oral sex on him. She testified, “[o]ne time, he had called me
downstairs and he was rolling up weed and then he smoked it and then told
me to smoke it.” The victim smoked the marijuana and then went upstairs,
but she was not feeling “normal” and she thought she was “high.” [The
petitioner] called her back downstairs and made her perform oral sex on
him.

      On another occasion, the victim fell asleep in her mother’s bedroom
while watching her youngest brother while her mother was at work. She
                                     -2-
awoke to [the petitioner] touching her. The victim recalled another incident
when [the petitioner] touched her chest in the living room. She testified,
“[I] was just scared and I told him -- I told him that I was going to tell my
mother and he said [‘]you tell [,] I’m going to kill you.[’]”

       The victim testified that the abuse ended when she was in eighth
grade after the family moved to another residence. [The petitioner] “stayed
there on and off.” The victim’s older brother told the victim’s mother about
the abuse when the victim was in the tenth grade.

        The victim’s older brother testified that [the petitioner] physically
abused him as a child. He recalled an incident when his mother was in the
hospital giving birth to his younger brother, and [the petitioner] told him to
watch for a cab that was coming to pick him up. After waiting for awhile
and not seeing a cab, he went upstairs to tell [the petitioner]. When he
walked inside the bedroom he saw [the petitioner] “on the bed with his
thang out and [the victim] was in the room with him.” He testified that [the
petitioner]’s penis was erect. On another occasion, at 2:30 or 3:00 a.m., the
victim’s brother saw [the petitioner] “on top of [the victim] giving her oral
sex” in the living room. On another occasion, the victim’s brother was
outside and he saw [the petitioner] and the victim through the window in
the laundry room. He testified “just something was awkward . . ..” He
testified that in 2007, during an argument with the victim, he told his
mother that [the petitioner] had abused the victim in the past.

        The victim’s mother testified that she and [the petitioner] lived
together with her five children for 15 years. She testified that [the
petitioner] never had a “steady job” and that he “demanded money” from
her. She testified that when the victim was 16 years old, she discovered
that [the petitioner] had previously molested the victim. The victim’s
mother confronted [the petitioner] with the allegation, and [the petitioner]
initially denied it. [The petitioner] then said, “‘if I did do it I was on drugs
and alcohol.’” During the investigation of this case, the victim’s mother
attempted to speak to [the petitioner] while wearing a “wire,” but [the
petitioner] refused to meet with her and said, “Bitch, you’re trying to set me
up.” The victim’s mother received a letter from [the petitioner] to his son,
the victim’s younger brother, that contained a drawing of a woman with a
gun to her head. She received the letter on the Saturday prior to testifying
in this case. She perceived the drawing as a threat.



                                     -3-
               Melinda Evans, an investigator with the Tennessee Department of
       Children’s Services, testified that she investigated the allegations against
       [the petitioner] after the victim’s twin sister disclosed information about the
       abuse to someone at school. She testified that the victim was “initially very
       reserved and very reluctant” to speak to her. The victim told Ms. Evans
       that [the petitioner] had touched her breasts and buttocks on top of her
       clothes. The victim was 17 years old at the time of the interview and stated
       that the incidents happened four years prior. The victim denied that she had
       ever touched [the petitioner].

              Eric Fitzgerald, of the Sex Crimes Unit of the Metro Nashville
       Police Department, testified that he interviewed the victim. Detective
       Fitzgerald testified that the victim was initially a “little stand-offish,” but
       that she eventually described the events, which she stated began when she
       was in fourth grade. She told Detective Fitzgerald that it started as kissing,
       then [the petitioner] touched her breasts outside her clothes, then inside her
       clothes, and her vagina, and eventually, [the petitioner] performed oral sex
       on the victim and had the victim perform oral sex on him. Detective
       Fitzgerald also interviewed the victim’s older brother, who had witnessed
       some incidents of abuse.

              [The petitioner] did not testify or present any proof at trial.

State v. Denver Joe McMath, Jr., No. M2012-01260-CCA-R3-CD, 2013 WL 5918733, at
*1-3 (Tenn. Crim. App. Nov. 1, 2013), perm. app. denied (March 3, 2014).

                                 Post-Conviction Hearing

        Although the petitioner alleged a number of instances of ineffective assistance in
his petition and at the evidentiary hearing, he confines himself on appeal to arguing trial
counsel was ineffective for failing to: 1) provide a copy of discovery; 2) sufficiently
cross-examine witnesses; 3) advise the petitioner of the applicable sentencing guidelines;
and 4) object to prosecutorial misconduct during closing arguments. Additionally, the
petitioner claims appellate counsel was ineffective for failing to communicate with him,
for failing to include his challenge to the bill of particulars in the motion for new trial,
and for failing to raise the issue of prosecutorial misconduct and several evidentiary
issues on appeal. Accordingly, we will summarize the portions of the evidentiary hearing
testimony relevant to those allegations.

       The first witness called by the petitioner was Woodrow Ledford, an investigator
with the Metro Police Department. Investigator Ledford testified he was involved in the
                                             -4-
investigation of the petitioner but could not remember if a “controlled phone call” was
made in this case. Investigator Ledford did, however, admit if a recording was made of
such a call it would have been turned over to the District Attorney’s Office.

        The petitioner then testified concerning his claims against trial counsel and
appellate counsel. While admitting trial counsel provided him with a copy of discovery
and discussed the State’s case against him, the petitioner claimed trial counsel failed to
sufficiently communicate with him. The petitioner, who was incarcerated prior to trial,
also stated trial counsel did not provide him with a copy of the CD which contained some
of the State’s discovery. The petitioner admitted trial counsel reviewed the CD but did
not discuss it with the petitioner after doing so.

        While admitting trial counsel sought funds for and hired an investigator as part of
his defense, the petitioner claimed trial counsel never discussed the investigator’s
findings with him. The petitioner admitted, however, that he met with the investigator.
The petitioner also stated trial counsel failed to find potential witnesses he felt would
have been “pertinent to my case.” Though the petitioner failed to provide specific names,
he testified trial counsel should have subpoenaed individuals from the childrens’ day care
and school.

       Next, the petitioner testified trial counsel failed to properly “challenge the
indictments.” While admitting trial counsel requested a bill of particulars, the petitioner
claimed the State’s response was not specific enough, and he asked counsel to renew his
motion and request a more specific response. According to the petitioner, trial counsel
did not make a second request of the State.

       The petitioner also claimed trial counsel was ineffective for failing to cross-
examine certain witnesses. According to the petitioner, both the victim’s mother and the
victim gave inconsistent statements prior to trial and trial counsel failed to adequately
cross-examine them about the inconsistencies. For example, the petitioner testified the
victim initially claimed one incident occurred upstairs and then she later testified the
same incident took place downstairs, and trial counsel failed to sufficiently cross-examine
the victim concerning this inconsistency.

       Next, the petitioner testified counsel was ineffective for allowing him to be
sentenced under the wrong sentencing act. According to the petitioner, his crimes were
committed prior to the 2005 amendment to the sentencing statute, yet he was sentenced
under the new statute which allowed the trial court to rely on certain enhancement factors
that should not have been considered.



                                           -5-
        Trial counsel, who represented the petitioner after arraignment through sentencing,
testified he has been practicing criminal law for twenty years and has handled forty to
fifty jury trials. Trial counsel stated that upon receiving discovery from the State, he
mailed a copy of the discovery to the petitioner. Trial counsel reviewed a CD provided
by the State and discussed the contents of the CD with the petitioner as well as answered
any questions the petitioner had about the discovery and the evidence in his case.

       As trial counsel and the petitioner prepared for trial, they “expected some of the
testimony to not be consistent with each other” based on the discovery provided by the
State. However, trial counsel noted that the inconsistencies were not related to the
elements of the crimes charged but differences such as “it happened in the afternoon or it
happened at night.” Trial counsel not only pointed these differences and inconsistences
out during the witnesses’ testimony but also summarized them during his closing
argument.

       Trial counsel filed “a bill of particulars that asked specific questions – dates,
times, places, details on the specifics of the allegation.” However, the State’s first
response was not very specific, so he requested more information and received a “more
detailed Election of Offenses where the specifics were discussed about how and when
and all that.”

       When questioned about the advice he provided concerning the petitioner’s
sentencing options, trial counsel testified they discussed the fact the petitioner had an
option about “which act to be sentenced under. And we chose one, and I believe that’s
on the record, and there was no issue about it at that time.” According to trial counsel, he
met with the petitioner on two occasions prior to the sentencing hearing and advised the
petitioner of his options under each act during their first meeting.

        The final witness was the petitioner’s appellate counsel.1 Appellate counsel
testified he has been practicing for thirteen years during which time he has handled
twenty-five criminal jury trials and several criminal appellate matters. Appellate counsel
was assigned to the petitioner’s case after the sentencing hearing and, therefore, he
handled both the motion for new trial and the petitioner’s appeal. In preparing both the
motion for new trial and the appeal, appellate counsel spoke with and exchanged
numerous letters with the petitioner. Appellate counsel also spoke with trial counsel and
reviewed the record.


        1
           According to the record, the petitioner’s trial counsel withdrew from the petitioner’s case prior
to the filing of the motion for new trial. New counsel was then appointed to represent the petitioner
during the motion for new trial and on appeal. In order to avoid confusion, we will refer to new counsel
as appellate counsel though he handled both trial and appellate matters.
                                                   -6-
       While appellate counsel and the petitioner agreed on some issues to include in the
motion for new trial and on appeal, such as some evidentiary issues and consecutive
sentencing, appellate counsel did not believe other issues the petitioner wished to pursue
had merit, such as the bill of particulars and prosecutorial misconduct. Appellate
counsel, therefore, only raised those issues which, in his experience, provided the
petitioner with the best opportunity to obtain relief.

        When questioned specifically as to why he did not raise the issue of whether the
petitioner was sentenced under the appropriate sentencing act, appellate counsel testified
that his review of the sentencing hearing transcript revealed the issue had been discussed
during the hearing with the petitioner and the petitioner had made an informed decision.
Therefore, appellate counsel did not raise the issue on appeal.

                                          Analysis

       The petitioner contends trial counsel and appellate counsel rendered ineffective
assistance. The State responds that the petitioner has failed to establish any deficiency by
either. Upon our review of the record, we agree with the State.

         The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.
art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel,
a petitioner must prove: (1) that counsel’s performance was deficient; and (2) that the
deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);
see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that the same
standard for ineffective assistance of counsel applies in both federal and Tennessee
cases). Both factors must be proven in order for the court to grant post-conviction relief.
Strickland, 466 U.S. at 687; Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997); Goad v.
State, 938 S.W.2d 363, 370 (Tenn. 1996). Accordingly, if we determine that either factor
is not satisfied, there is no need to consider the other factor. Finch v. State, 226 S.W.3d
307, 316 (Tenn. 2007) (citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)).
Additionally, review of counsel’s performance “requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”
Strickland, 466 U.S. at 689; see also Henley, 960 S.W.2d at 579. We will not second-
guess a reasonable trial strategy, and we will not grant relief based on a sound, yet
ultimately unsuccessful, tactical decision. Granderson v. State, 197 S.W.3d 782, 790
(Tenn. Crim. App. 2006).

        As to the first prong of the Strickland analysis, “counsel’s performance is effective
if the advice given or the services rendered are within the range of competence demanded
                                            -7-
of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that
counsel was deficient, the petitioner must demonstrate “that counsel’s acts or omissions
were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see
also Baxter, 523 S.W.2d at 936.

        Even if counsel’s performance is deficient, the deficiency must have resulted in
prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong
of the Strickland analysis, 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.” Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks
omitted).

        Trial counsel has a duty to “conduct appropriate investigations, both factual and
legal, to determine what matters of defense can be developed.” Baxter, 523 S.W.2d at
933. “[C]ounsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary. In any ineffectiveness case, a
particular decision not to investigate must be directly assessed for reasonableness in all
the circumstances, applying a heavy measure of deference to counsel’s judgments.”
Strickland, 466 U.S. at 691; see also State v. Burns, 6 S.W.3d 453, 462 (Tenn. 1999).
However, “when a defendant has given counsel reason to believe that pursuing certain
investigations would be fruitless or even harmful, counsel’s failure to pursue those
investigations may not later be challenged as unreasonable.” Strickland, 466 U.S. at 691.

        In order to prevail on a petition for post-conviction relief, a petitioner must prove
all factual allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828,
830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and
fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Appellate courts are bound
by the post-conviction court’s factual findings unless the evidence preponderates against
such findings. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015).

       When reviewing the post-conviction court’s factual findings, this court does not
reweigh the evidence or substitute its own inferences for those drawn by the post-
conviction court. Id.; Fields, 40 S.W.3d at 456 (citing Henley, 960 S.W.2d at 578.
Additionally, “questions concerning the credibility of the witnesses, the weight and value
to be given their testimony, and the factual issues raised by the evidence are to be
resolved by the [post-conviction court].” Fields, 40 S.W.3d at 456 (citing Henley, 960
S.W.2d at 579); see also Kendrick, 454 S.W.3d at 457. The trial court’s conclusions of

                                            -8-
law and application of the law to factual findings are reviewed de novo with no
presumption of correctness. Kendrick, 454 S.W.3d at 457.

       A. Trial Counsel

       Initially, the petitioner contends trial counsel was ineffective in providing
discovery. While admitting trial counsel shared written discovery and discussed “the
contents of the disk of evidence provided by the State” with the petitioner, the petitioner
complains trial counsel was ineffective because the petitioner “never saw the actual
evidence from the disk.” However, other than making his claim, the petitioner failed to
present any proof during the post-conviction hearing as to what discovery trial counsel
failed to provide him and/or how he was prejudiced by not being able to personally
review the CD in question. Thus, the petitioner has failed to meet the burden required of
him and is not entitled to relief.

        Next, the petitioner claims trial counsel was ineffective for failing to adequately
cross-examine witnesses and point out inconsistencies in their testimony. However, the
petitioner fails to provide examples or arguments in support of his claim as to how trial
counsel’s action’s prejudiced his case. A brief shall contain “[an] argument . . . setting
forth the contentions of the appellant with respect to the issues presented, and the reasons
therefor, including the reasons why the contentions require appellate relief, with citations
to the authorities and appropriate references to the record . . . relied on.” Tenn. R. App.
P. 27(a)(7). Failure to comply with this basic rule will ordinarily constitute a waiver of
the issue. Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument,
citation to authorities, or appropriate references to the record will be treated as waived in
this court.”); State v. Thompson, 36 S.W.3d 102, 108 (Tenn. Crim. App. 2000)
(determining that issue was waived when defendant cited no authority to support his
argument on appeal). The petitioner does not support this claim with any argument or
authority; consequently, it is waived.

       The petitioner next contends trial counsel was ineffective for failing to request
“the case be dismissed” because the “victim testified at trial that she was not touched in
the vaginal area, as alleged by the State in the Election of Offenses.” Initially we note the
petitioner fails to specify which counts of the indictment he claims should have been
dismissed. Additionally, because the petitioner failed to make a copy of the trial
transcript an exhibit to the post-conviction hearing, we must rely on the summary of the
victim’s testimony provided by this Court on direct appeal.

       The petitioner also claims trial counsel was ineffective for failing to properly
advise him concerning his sentencing options. The indictment alleged that the offenses
were committed between September 5, 2000, and September 4, 2003. For offenses
                                            -9-
committed prior to June 7, 2005, sentencing was governed by prior law, which provided
for “presumptive” sentences. Trial courts were to enhance and/or mitigate a defendant’s
sentence based upon the application of enhancement and mitigating factors. See Tenn.
Code Ann. § 40-35-210(d), (e) (2003).

       In response to Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d
403 (2004), our legislature amended Tennessee’s sentencing scheme in 2005 and
eliminated presumptive sentences. The amended act also provided that the trial court set
a sentence within the range and consider imposing the minimum sentence. Tenn. Code
Ann. § 40-35-210(c)(1). The trial court “shall consider, but is not bound by” certain
“advisory sentencing guidelines,” which include that the sentence be adjusted, as
appropriate, for any enhancement or mitigating factors shown. Tenn. Code Ann. § 40-
35-210(c)(2). However, “defendants who are sentenced after June 7, 2005, for offenses
committed on or after July 1, 1982,” cannot be sentenced pursuant to the amended
sentencing act without a waiver of the defendant’s ex post facto protections. Tenn. Code
Ann. § 40-35-210, Compiler’s Notes.

       Trial counsel testified that he and the petitioner discussed the fact the petitioner
could choose under which act he wanted to be sentenced. According to trial counsel, “we
chose one, and I believe that’s on the record, and there was no issue about it at that time.”
Appellate counsel’s testimony corroborated that of trial counsel. When questioned about
the issue, appellate counsel noted he reviewed the record and recalled a discussion in
open court about the petitioner’s having a choice and the petitioner’s making that choice.
Again, we note the trial transcript, including the sentencing hearing, was not introduced
as an exhibit during the post-conviction hearing, and therefore, is not included in the
record on appeal. Thus, based on the testimony of trial and appellate counsel and the
record before us, the petitioner has failed to prove his factual allegation that he was not
properly advised of his rights and options concerning sentencing and was, therefore,
sentenced under the wrong act, by clear and convincing evidence. Accordingly, the
petitioner is not entitled to relief on this claim.

       The petitioner’s final claim regarding trial counsel is that trial counsel was
ineffective for failing to object to portions of the State’s closing argument. However, the
petitioner fails to support his claim with any argument or citations to the record or
appropriate authorities; therefore, the petitioner has waived consideration of this claim.
See Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b); Thompson, 36 S.W.3d at
108.

       B. Appellate Counsel



                                           - 10 -
        In his brief to this Court, the petitioner lists several claims of ineffective assistance
of counsel directed at appellate counsel, including failure to adequately communicate
with the petitioner, failure to include the bill of particulars issue in the motion for new
trial, and failure to include the issue of prosecutorial misconduct and certain evidentiary
issues on appeal. However, the petitioner has failed to support his claims with any
argument, citations to the record, or appropriate authorities; therefore, the petitioner has
waived consideration of these claims. Id.

         Despite the petitioner’s waiver, the record supports the conclusion of the post-
conviction court that the petitioner has failed to establish ineffectiveness on the part of
appellate counsel. Contrary to the petitioner’s claim, appellate counsel testified he met
with the petitioner and exchanged numerous letters with him prior to filing the motion for
new trial and the petitioner’s appeal. In addition to consulting with the petitioner,
appellate counsel also met with trial counsel and reviewed the transcripts from the
petitioner’s trial. Based on his experience, appellate counsel found a handfull of issues
he believed might provide the petitioner with relief and raised those issues. “[D]eference
to matters of strategy and tactical choices applies only if the choices are informed ones
based upon adequate preparation.” Goad, 938 S.W.2d at 369. In reviewing informed
decisions based upon adequate preparation, courts give deference to strategic and tactical
choices. Id. Furthermore, second guessing these decisions is not a function of the court.
See Henley, 960 S.W.2d at 579. The petitioner has failed to show how appellate
counsel’s informed decisions based on his adequate preparation, amount to unreasonable
representation. Thus, the petitioner is not entitled to relief.




                                                ____________________________________
                                                J. ROSS DYER, JUDGE




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