         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs October 13, 2004

    JERMAINE IVORY and JAMES IVORY v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Davidson County
                            No. 98-D-2781    Steve Dozier, Judge



                    No. M2003-02553-CCA-R3-PC Filed December 9, 2004

Defendant Jermaine Ivory was convicted by a jury of three charges involving the sale of cocaine.
For these crimes, the trial court sentenced Jermaine Ivory to an effective sentence of thirty-six years
in the Department of Correction. Codefendant James Ivory was convicted by the same jury of one
of the same charges; James Ivory subsequently pled guilty to another cocaine offense, two marijuana
offenses, and one count of felony possession of a firearm. For all of these offenses, James Ivory was
sentenced to an effective sentence of twenty years in the Department of Correction. The
consolidated direct appeal of these two Defendants was denied. See State v. James Lee Ivory, No.
M2000-02145-CCA-R3-CD, 2003 WL 76980 (Tenn. Crim. App., Nashville, Jan. 10, 2003). Both
Defendants subsequently filed for post-conviction relief. Jermaine Ivory alleged ineffective
assistance of counsel in conjunction with his trial, claiming that his lawyer failed to adequately
investigate his case, failed to adequately advise him about his case, and failed to investigate and/or
pursue issues involving his mental health. James Ivory alleged that his trial counsel was ineffective
at trial in failing to object to inadmissible evidence, and in failing to file a motion for new trial,
thereby waiving a suppression issue. James Ivory also alleged that, due to his lawyer’s ineffective
assistance, his later guilty pleas were not knowing and voluntary. After a hearing, the trial court
denied relief to both Defendants and this direct appeal followed. We affirm the judgments of the
trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JOHN
EVERETT WILLIAMS, J., joined.

Dwight E. Scott and Michael Colaveccio, Nashville, Tennessee, for the appellants, Jermaine Ivory
and James Ivory.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
Victor S. Johnson, District Attorney General; and Ryan Brown, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                             OPINION
                                                      FACTS

         According to the opinion filed in the direct appeal of the Defendants’ convictions, a
confidential informant purchased cocaine from Defendant Jermaine Ivory at a residence in Nashville
on two different occasions in the spring of 1998. A search of the residence was subsequently
conducted on April 6, 1998. Following the seizure of evidence during this search, Defendant
Jermaine Ivory was indicted on two counts involving the sale of cocaine and one count of conspiring
to sell cocaine.1 Defendant James Ivory was also indicted on the conspiracy charge. The Defendants
were tried together on these counts and convicted by a jury as charged. Defendant James Ivory
subsequently pled guilty to two other counts alleged against him in the indictment. Defendant James
Ivory also pled guilty to two additional charges brought against him arising out of drug-related
activities occurring in November 1998. These charges were brought pursuant to a criminal
information rather than by indictment. These charges stemmed in part from a search conducted in
November 1998.

       Both Defendants now seek post-conviction relief on the basis of ineffective assistance of
counsel. Defendant James Ivory further challenges the constitutionality of his guilty pleas.

JERMAINE IVORY
        Defendant Jermaine Ivory was represented at trial by his retained attorney, Mr. Dale Quillen.
Jermaine Ivory’s allegations of ineffective assistance of counsel consist of complaints about Mr.
Quillen’s investigation of the case, Mr. Quillen’s investigation of his mental health, and the
adequacy of Mr. Quillen’s advice to him about the case. In support of his allegations, Jermaine
Ivory initially testified at the post-conviction hearing that the only time he saw Mr. Quillen was in
the courthouse after his arrest; that Mr. Quillen told him that the State “ain’t got nothing on” him;
that he told Mr. Quillen about his mental health “problems” and that he thought they should be
investigated; and that he told Mr. Quillen that he wanted to testify. Jermaine Ivory acknowledged
that Mr. Quillen interviewed the four witnesses that he suggested be contacted, but he did not know
if Mr. Quillen interviewed the State’s witnesses.

        On cross-examination, Jermaine Ivory admitted that he had, in fact, met with Mr. Quillen
several times prior to his arrest; that Mr. Quillen told him what charges were being brought against
him and what the State would have to prove; that he told Mr. Quillen “everything” about the charges;
and that Mr. Quillen conveyed a plea offer from the State for twelve years, to which he responded,
“I ain’t did nothing,” and “Naw, I ain’t gonna plead guilty to that.” On questions by the court,
Jermaine Ivory responded that Mr. Quillen brought to him in jail the State’s audiotapes, where they
listened to them. Jermaine Ivory asserted that Mr. Quillen never discussed the possible sentences
he was facing, and that Mr. Quillen was supposed to “[p]rove [his] innocence . . . [a]nd he didn’t do
it.”



       1
           Defendant Jermaine Ivory was also indicted on other counts not relevant here.

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       Mr. Quillen also testified at the hearing. He explained that he visited the scene of the alleged
crimes; hired an investigator to assist him in preparing for trial; spoke with all of the witnesses
named to him by Jermaine Ivory; filed a motion to compel discovery; and discussed the facts of the
case with the Defendant. Jermaine Ivory protested his innocence of the charged offenses throughout
Mr. Quillen’s representation of him. Mr. Quillen acknowledged that he knew that Jermaine Ivory
had had some difficulties as a child, but “didn’t see anything that would -- that [he] thought
would’ve gotten [him] any place close to a finding that [the Defendant] was -- would’ve had a
mental defense.” While Mr. Quillen had no distinct recollection of explaining to Jermaine Ivory the
range of punishments attendant upon the charged offenses, he stated that he was “sure [he] would
have” discussed that topic with his client. Mr. Quillen also stated that he would have advised the
Defendant not to testify, and did not recall Jermaine Ivory stating that he wanted to testify.

        The trial court found that Mr. Quillen “discussed the elements of the offenses with [Jermaine
Ivory] sufficiently to place the petitioner on notice of the charges against him”; that Mr. Quillen
“diligently performed his task in regards to acquiring discovery and investigating the case”; and that
Jermaine Ivory’s proof regarding his alleged mental health problems was “unpersuasive,” noting that
Jermaine Ivory “did not introduce any documentation supporting his claim of mental health
problems.”2 The trial court therefore found that Jermaine Ivory had “not demonstrated prejudice by
his counsel’s actions sufficient for relief under the post-conviction act.”

JAMES IVORY
        Defendant James Ivory was represented by Mr. Clark Shaw. James Ivory complains about
Mr. Shaw’s representation in conjunction with both his jury trial and his later guilty pleas. With
respect to the jury trial — upon which James Ivory was convicted of conspiring to sell cocaine —
James Ivory asserts that Mr. Shaw was deficient in failing to object to inadmissible photographs and
in failing to file a motion for new trial, which would have preserved for appellate review the
admissibility of evidence gathered in the April 1998 search. With respect to his guilty pleas, James
Ivory alleges that his lawyer failed to reserve a certified question of law regarding the admissibility
of evidence gathered during the November 1998 search, and that Mr. Shaw failed to explain to him
that he had a right to have a grand jury review the charges brought against him pursuant to the
criminal information. James Ivory also contends that his guilty pleas were involuntary and
unknowing because of his minimal education and functional illiteracy.

        At the post-conviction hearing, Mr. Shaw testified before James Ivory did. Mr. Shaw said
that he explained James Ivory’s guilty plea petition to him and thought that he explained things
adequately. He did not know to what extent James Ivory could read and write, but assumed that his
criminal defense clients were illiterate; he did not like to embarrass them by asking. Mr. Shaw stated
that he did not know that James Ivory had been diagnosed as learning-disabled, but described James
Ivory as an “intelligent human being” who never gave any indication of not understanding the
proceedings. Mr. Shaw did not explain in detail the Defendant’s right to have the Grand Jury indict


        2
          Nor did Jermaine Ivory introduce any expert testimony about his alleged mental health problems. The only
proof he submitted on this topic was his own testimony.

                                                       -3-
him on the charges in the criminal information to which he eventually pled guilty, but involved
James Ivory in the decision to bypass that process in order to face a single trial instead of two.
According to Mr. Shaw, when James Ivory decided to plead guilty to the charges raised in the
information, the Defendant did not desire to reserve a certified question of law regarding whether
the evidence obtained during the November 1998 search should have been suppressed. Mr. Shaw
testified that, in retrospect, he should have reserved the question. With respect to an appeal of the
jury verdict, Mr. Shaw testified that his client told him that he did not want to pursue an appeal.
Although Mr. Shaw had already drafted a motion for new trial, he did not file it due to his client’s
instructions. James Ivory later changed his mind, but too late to file the motion. Accordingly, James
Ivory was deemed by this Court on direct appeal to have waived any suppression issues he had with
respect to the April 1998 search. See James Lee Ivory, 2003 WL 76980, at *5.

        James Ivory testified that he went through seventh grade and that his reading and writing
skills were “[n]ot that good.” He introduced school records indicating that he was learning-disabled.
He denied that he told Mr. Shaw that he did not want to appeal his jury verdict. He denied that Mr.
Shaw explained his constitutional rights in conjunction with his guilty plea. On cross-examination,
James Ivory asserted that his lawyer was lying during his testimony at the post-conviction hearing.
With respect to his guilty pleas, he claimed that he just “signed some papers” and did not know that
he was pleading guilty.

        With respect to James Ivory’s contentions regarding his attorney’s failure at trial to object
to allegedly inadmissible photographs, the trial court found that no prejudice accrued as a result of
Mr. Shaw’s allegedly deficient performance in this regard because the Codefendant’s counsel
objected, and the evidence was properly deemed admissible over the Codefendant’s objection. As
to Mr. Shaw’s failure to file a motion for new trial raising as an issue the validity of the April 6
search, the trial court specifically “accredit[ed] the testimony of Attorney Shaw and [was] of the
opinion that he was acting on directions from [James Ivory] not to appeal.” The trial court also
found that James Ivory had failed to demonstrate that his jury-verdict conviction might have been
reversed on appeal on the ground that the evidence gathered during the April search should have
been suppressed, even if Mr. Shaw had timely filed the motion. Codefendant Jermaine Ivory
challenged this search in the direct appeal of his convictions, and this Court deemed this issue to be
without merit. See James Lee Ivory, 2003 WL 76980, at *8.

        With respect to James Ivory’s contentions regarding his guilty plea, the trial court determined
that he “knew the nature of his act in pleading guilty”; accredited Mr. Shaw’s testimony in this
regard; and was “of the opinion that [James Ivory] understood the ramifications of pleading guilty
to these charges.” The trial court further found that the Defendant waived his right to a grand jury
proceeding in conjunction with his plea, that this matter was covered by the trial court during the
plea, and that there was no ineffective assistance of counsel in this regard.

                                   STANDARD OF REVIEW
        To sustain a petition for post-conviction relief, a defendant must prove his or her factual
allegations by clear and convincing evidence at an evidentiary hearing. See Tenn. Code Ann. § 40-


                                                 -4-
30-110(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). Upon review, this Court will not re-
weigh or re-evaluate the evidence below; all questions concerning the credibility of witnesses, the
weight and value to be given their testimony, and the factual issues raised by the evidence are to be
resolved by the trial judge, not the appellate courts. See Momon, 18 S.W.3d at 156; Henley v. State,
960 S.W.2d 572, 578-79 (Tenn. 1997). The trial judge’s findings of fact on a petition for post-
conviction relief are afforded the weight of a jury verdict and are conclusive on appeal unless the
evidence preponderates against those findings. See Momon, 18 S.W.3d at 156; Henley, 960 S.W.2d
at 578.

         Both the Sixth Amendment to the United States Constitution and Article I, Section 9 of the
Tennessee Constitution guarantee a criminal defendant the right to representation by counsel. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).
Both the United States Supreme Court and the Tennessee Supreme Court have recognized that the
right to such representation includes the right to “reasonably effective” assistance, that is, within the
range of competence demanded of attorneys in criminal cases. See Strickland v. Washington, 466
U.S. 668, 687 (1984); Burns, 6 S.W.3d at 461; Baxter, 523 S.W.2d at 936.

        A lawyer’s assistance to his or her client is ineffective if the lawyer’s conduct “so
undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.” Strickland, 466 U.S. at 686. This overall standard is comprised of
two components: deficient performance by the defendant’s lawyer, and actual prejudice to the
defense caused by the deficient performance. See id. at 687; Burns, 6 S.W.3d at 461. The defendant
bears the burden of establishing both of these components by clear and convincing evidence. See
Tenn. Code Ann. § 40-30-110(f); Burns, 6 S.W.3d at 461. The defendant’s failure to prove either
deficiency or prejudice is a sufficient basis upon which to deny relief on an ineffective assistance of
counsel claim. See Burns, 6 S.W.3d at 461; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

        This two-part standard of measuring ineffective assistance of counsel also applies to claims
arising out of a guilty plea. See Hill v. Lockhart, 474 U.S. 52, 58 (1985). The prejudice component
is modified such that the defendant “must show that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id.
at 59; see also Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998).

       In evaluating a lawyer’s performance, the reviewing court uses an objective standard of
“reasonableness.” See Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462. The reviewing court
must be highly deferential to counsel’s choices “and should indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.” Burns, 6
S.W.3d at 462; see also Strickland, 466 U.S. at 689. The court should not use the benefit of
hindsight to second-guess trial strategy or to criticize counsel’s tactics, see Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and counsel’s alleged errors should be judged in light of all the facts and
circumstances as of the time they were made, see Strickland, 466 U.S. at 690; Hicks v. State, 983
S.W.2d 240, 246 (Tenn. Crim. App. 1998).



                                                  -5-
        A trial court’s determination of an ineffective assistance of counsel claim presents a mixed
question of law and fact on appeal. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). This
Court reviews the trial court’s findings of fact with regard to the effectiveness of counsel under a de
novo standard, accompanied with a presumption that those findings are correct unless the
preponderance of the evidence is otherwise. See id. “However, a trial court’s conclusions of law--
such as whether counsel’s performance was deficient or whether that deficiency was prejudicial--are
reviewed under a purely de novo standard, with no presumption of correctness given to the trial
court’s conclusions.” Id.

                                             ANALYSIS
JERMAINE IVORY
        In reviewing Jermaine Ivory’s allegations of ineffective assistance of counsel and the proof
adduced at the post-conviction hearing, we find no error by the trial court in denying relief. Jermaine
Ivory has not demonstrated by clear and convincing evidence that Mr. Quillen failed to investigate
his case adequately, or that Mr. Quillen could have established any viable theory of defense based
upon Jermiane Ivory’s mental health (or lack thereof). While the proof is less than overwhelming
that Mr. Quillen explained to Jermaine Ivory the possible punishments he was facing on these
charges, and while the trial court made no specific findings on this particular allegation, we find that
the Defendant Jermaine Ivory has failed to prove by clear and convincing evidence that he was
prejudiced by any alleged failure on his attorney’s part in this regard. Mr. Quillen testified that
Jermaine Ivory maintained his innocence throughout the proceedings. Jermaine Ivory testified that
he refused to plead guilty, even after getting an offer from the State for twelve years. Jermaine Ivory
did not testify that he would have pled guilty had he been better informed about the potential
sentences he was facing upon a jury verdict of guilt; rather, he testified that his attorney failed him
because he was supposed to “prove [his] innocence and he didn’t do it.” Jermaine Ivory’s real
complaint is with the jury that convicted him, not his lawyer. The Defendant having failed to prove
his allegations of ineffective assistance of counsel by clear and convincing evidence, we affirm the
trial court’s denial of post-conviction relief to Jermaine Ivory.

JAMES IVORY
         Again, we find no error by the trial court in denying post-conviction relief to Defendant
James Ivory. With respect to Mr. Shaw’s failure to object at trial to allegedly inadmissible
photographs, Mr. Shaw explained that he did not object because counsel for one of the codefendants
did so. Moreover, this was an issue that could have been raised on direct appeal but was not
because, according to the trial court’s finding of fact, James Ivory told Mr. Shaw that he did not want
to appeal his jury conviction. Accordingly, James Ivory has waived this particular complaint for the
purposes of post-conviction relief. See Tenn. Code Ann. § 40-30-106(g). As to Mr. Shaw’s failure
to file a motion for new trial, the evidence does not preponderate against the trial court’s finding that
James Ivory was responsible for this decision, and James Ivory has therefore failed to demonstrate
that Mr. Shaw’s representation was deficient in this regard.

        Similarly, the evidence does not preponderate against the trial judge’s findings of fact with
respect to James Ivory’s allegations about his guilty pleas. Mr. Shaw testified that he fully explained


                                                  -6-
the pleas to James Ivory and that the Defendant gave no indication of not understanding what he was
doing. The trial court accredited this testimony. Although the trial court made no specific finding
with respect to James Ivory’s allegations that his lawyer was deficient in failing to reserve a certified
question of law in conjunction with one of his pleas, Mr. Shaw testified that James Ivory did not
want to reserve the question of law. While Mr. Shaw testified that, in retrospect, he should have
reserved the question, this Court does not second-guess strategic decisions with the benefit of
hindsight. James Ivory’s instruction to Mr. Shaw regarding the certified question was consistent
with his instruction to not file a motion for new trial; he apparently wanted finality with respect to
his convictions. The Defendant has failed to establish by clear and convincing proof that Mr. Shaw
was deficient in failing to preserve a certified question of law, and he is therefore entitled to no relief
on this ground.

                                          CONCLUSION
        Neither Defendant has established by clear and convincing evidence that he suffered from
the ineffective assistance of counsel at any relevant stage of the proceedings below. Accordingly,
we affirm the judgments of the trial court denying relief to both Defendants.

                                                         ___________________________________
                                                         DAVID H. WELLES, JUDGE




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