                                                                                          08/15/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs April 16, 2019

        SEDRICK DARION MITCHELL v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Bedford County
                      No. 18123    Forest A. Durard Jr., Judge


                             No. M2018-00975-CCA-R3-PC


The Petitioner, Sedrick Darion Mitchell, appeals from the Bedford County Circuit
Court’s denial of his petition for post-conviction relief. The Petitioner contends that his
trial counsel was ineffective for not challenging the validity of the indictment.
Discerning no error, we affirm the judgment of the post-conviction court.

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

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

Christopher P. Westmoreland, Shelbyville, Tennessee, for the appellant, Sedrick Darion
Mitchell.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Assistant Attorney General; Robert James Carter, District Attorney General; and Michael
David Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

       The Petitioner was convicted by a jury of failure to appear and was sentenced to
six years to be served at sixty percent release eligibility. State v. Sedrick Darion
Mitchell, No. M2016-00559-CCA-R3-CD, 2016 WL 6541836, at *1 (Tenn. Crim. App.
Nov. 4, 2016), perm. app. denied (Tenn. Feb. 16, 2017). This court affirmed the
Petitioner’s conviction and sentence on direct appeal. Id. On February 16, 2017, our
supreme court declined to review this court’s decision.

      The Petitioner filed a timely pro se petition for post-conviction relief. As pertinent
to our review, the pro se petition alleged that trial counsel was ineffective for “not
objecting to or challenging the constitutionality of the indictment or [its] contents.”1
Counsel was appointed to represent the Petitioner in this matter, but no amended petition
for post-conviction relief was filed.

       The indictment alleged that the Petitioner failed to appear on January 27, 2015, in
general sessions court on the following charges: “[sale] of schedule II drug (cocaine
base) [two] counts, possession of schedule II drugs (cocaine base) for [sale], possession
of schedule VI [drug] (marijuana) for [sale], . . . and possession of drug paraphernalia.”
Trial counsel recalled that, prior to the jury’s being sworn, he and the prosecutor
discovered that the second sale of cocaine charge occurred on February 6, 2015. The
Petitioner was scheduled to appear at the January 27, 2015 court date for the four other
charges.

        Trial counsel admitted that he did not challenge the indictment because it
erroneously included an offense that occurred after the January 27, 2015 court date. Trial
counsel testified that even if he had “made some kind of objection,” he would have
allowed the State to amend the indictment because of his “commitment to judicial
economy.” Trial counsel recalled that the prosecutor did not read the specific charges
listed in the indictment when he read it to the jury. Trial counsel also recalled that the
jury never heard about the second sale of cocaine charge during the Petitioner’s trial.

        The post-conviction court denied the petition for post-conviction relief in a written
order filed on May 14, 2018. The post-conviction court concluded that trial counsel was
not deficient for failing to challenge the validity of the indictment. The post-conviction
court found that the indictment listed the charges that the Petitioner failed to appear on.
The post-conviction court accredited trial counsel’s testimony that “the charges in the
indictment were not read to the jury when the indictment was read” and that the second
sale of cocaine charge “was not ever brought up since it happened later.”

       On appeal, the Petitioner contends that he received ineffective assistance from trial
counsel. The Petitioner argues that trial counsel was ineffective for not challenging the
validity of the indictment. The State responds that the post-conviction court did not err in
denying the petition.

       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.

1
 This opinion will focus solely on the issue raised in the Petitioner’s brief. All other issues have been
waived. See Tenn. R. App. P. 36(a).
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State, 40 S.W.3d 450, 456 (Tenn. 2001). Additionally, “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 post-conviction court. Id.
However, we review the post-conviction court’s application of the law to its factual
findings de novo with no presumption of correctness. Id. at 457.

       Post-conviction relief is available when a “conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103.
Criminal defendants are constitutionally guaranteed the right to effective assistance of
counsel. Dellinger, 279 S.W.3d at 293 (citing U.S. Const. amend. VI; Cuyler v. Sullivan,
446 U.S. 335, 344 (1980)). When a claim of ineffective assistance of counsel is made
under the Sixth Amendment to the United States Constitution, 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).

       Deficient performance requires a showing that “counsel’s representation fell
below an objective standard of reasonableness,” despite the fact that reviewing courts
“must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 688-89. Prejudice requires
proof of “a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Id. at 694. “Because a petitioner must
establish both prongs of the test, a failure 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). The Strickland standard has been applied to the right to
counsel under article I, section 9 of the Tennessee Constitution. State v. Melson, 772
S.W.2d 417, 419 n.2 (Tenn. 1989).

       The statutory and constitutional requirements for an indictment are satisfied when
the indictment achieves “the overriding purpose of notice to the accused.” State v.
Hammonds, 30 S.W.3d 294, 300 (Tenn. 2000). “So long as an indictment performs its
essential constitutional and statutory purposes, a defect or omission in the language of the
indictment will not render the judgment void.” Hart v. State, 21 S.W.3d 901, 903 (Tenn.
2000). The indictment provided sufficient notice to the Petitioner of the failure to appear
charge. The inclusion of the charges the Petitioner failed to appear on was surplusage.
See State v. March, 293 S.W.3d 576, 588 (Tenn. Crim. App. 2008). Therefore, the
erroneous inclusion of the second sale of cocaine charge did not invalidate the
indictment. Moreover, trial counsel testified that the jury never heard about the second
sale of cocaine charge and that he would have allowed the State to amend the indictment


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to promote “judicial economy.” Accordingly, we conclude that the post-conviction court
did not err in denying the petition for post-conviction relief.

       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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