        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs September 3, 2014

                     RICKY FRITH v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Shelby County
                          No. 08-06733    Chris Craft, Judge




              No. W2013-02435-CCA-R3-PC - Filed December 10, 2014


The Petitioner, Ricky Frith, appeals the denial of post-conviction relief, arguing that he
received ineffective assistance of counsel based upon trial counsel’s failure to: (1) adequately
communicate, investigate, and prepare for trial by obtaining “exonerating records”; (2) raise
a Fourth Amendment challenge to the Petitioner’s illegal arrest; (3) subpoena the officer who
took the victim’s initial suspect description; and (4) file a timely motion for new trial.
Additionally, the Petitioner contends that he received ineffective assistance of appellate
counsel based upon appellate counsel’s advice that there was no legitimate basis for an
appeal, and appellate counsel’s failure to request a delayed appeal. After our review, we
conclude that the Petitioner has failed to establish that he is entitled to post-conviction relief
and affirm the judgment of the post-conviction court.

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

R OBERT L. H OLLOWAY, J R., J., delivered the opinion of the Court, in which A LAN E. G LENN
and R OBERT W. W EDEMEYER, JJ., joined.

Reginald E. Shelton, Memphis, Tennessee, for the appellant, Ricky Frith.

Robert E. Cooper, Jr. Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Marianne Bell, Assistant District
Attorney General, for the appellee, State of Tennessee.




                                               -1-
                                               OPINION

                                 I. Procedural History and Facts

      Following a jury trial, Ricky Frith (“the Petitioner”) was convicted of attempted
aggravated burglary1 and sentenced as a career offender to 12 years in the Department of
Correction. Thereafter, trial counsel filed a motion for new trial, asserting that the evidence
was insufficient to support the Petitioner’s conviction. However, because the Petitioner’s
motion for new trial was untimely, it was not heard by the trial court.

        The Petitioner retained new counsel to pursue a direct appeal, and appellate counsel
filed a motion with this Court to waive the timely filing of a notice of appeal. See State v.
Ricky Frith, No. W2011-00944-CCA-MR3-CD (Tenn. Crim. App. May 13, 2011) (order).
Although this Court granted the Petitioner’s motion, the Petitioner voluntarily dismissed his
appeal several months later. See State v. Ricky Frith, No. W2011-00944-CCA-MR3-CD
(Tenn. Crim. App. November 30, 2011) (order).

        The Petitioner then filed a timely pro se petition for post-conviction relief. Following
the appointment of counsel, an amended petition was filed. At the post-conviction hearing,
the Petitioner testified that about a week after the offense, he was arrested based upon the
victim’s identification of him in a photo lineup. The Petitioner explained that the main issue
in his case had been the victim’s identification of him as the perpetrator. To challenge the
identification at trial, counsel thoroughly cross-examined the victim and presented alibi
witnesses to establish that the Petitioner was visiting a friend in the hospital at the time of the
burglary. The Petitioner complained, however, that trial counsel failed to obtain a copy of
the sign-in sheet from the hospital.

        The Petitioner also testified that trial counsel should have called Officer McNinch to
testify about the victim’s initial description of the suspect because the victim would have


        1
          After its review of the trial transcripts, the post-conviction court provided the following summary
of the offense:

                The victim, a University of Memphis student, heard and then observed the
                [P]etitioner repeatedly attempting to break in his glass door with a baseball
                bat. He went out another door and drew down on the [P]etitioner with a .40
                caliber Smith and Wesson handgun, ordering him to “freeze.” After about
                15-20 seconds the [P]etitioner threw down his bat and ran away, the victim
                immediately calling 911. The perpetrator had been wearing a tank-top shirt
                with visible tattoos, and the [P]etitioner had become a suspect because of
                those tattoos.

                                                    -2-
been “caught lying” at trial. The Petitioner explained that the victim’s initial description of
the perpetrator did not match the description the victim gave at trial. Specifically, the victim
testified at trial that the perpetrator had only one tattoo, but he told Officer McNinch that the
suspect had a “half a sleeve [tattoo], from his shoulder to his elbow.” According to the
Petitioner, trial counsel should have called Officer McNinch to the stand to impeach the
victim’s trial testimony because other than the victim’s testimony, the State had no other
evidence linking the Petitioner to the crime.

         The Petitioner acknowledged that trial counsel cross-examined the victim regarding
his identification of the Petitioner and did a “pretty good job of pointing out that the guy was
mistaken . . . .” During cross-examination, trial counsel asked the Petitioner to stand up and
take off his shirt so that the jury could see the Petitioner’s extensive tattoos. Additionally,
trial counsel presented photographs to the jury, showing that the Petitioner had these tattoos
at the time of the offense. Trial counsel argued in closing that the victim was mistaken about
his identification of the Petitioner, and counsel pointed out that there was no physical
evidence connecting the Petitioner to the scene. Additionally, trial counsel called six
witnesses on the Petitioner’s behalf to establish the Petitioner’s alibi, but some of the times
provided by his alibi witnesses were inconsistent.

        The Petitioner testified that at the hearing on his motion for new trial, the trial court
informed counsel that it would not hear the motion because it was not timely filed. The
Petitioner testified that trial counsel did not discuss the issues to be raised in the motion for
new trial with him. The Petitioner stated that he would have wanted to include an issue about
the insufficiency of the victim’s testimony to support his conviction. Additionally, he would
have wanted to raise an issue of prosecutorial misconduct based upon the prosecutor’s
argument to the jury that there was nothing to show that the victim was mistaken in his
identification. The Petitioner asserted that the prosecutor knew “that her victim, the witness,
[was] telling two different stories.”

       The Petitioner testified that he hired appellate counsel to pursue a direct appeal. The
Petitioner had a very lengthy discussion with appellate counsel, and appellate counsel
explained that “there was no realistic possibility that [his] conviction would be reversed.”
Appellate counsel told the Petitioner that he had “no viable basis for an appeal” and later sent
him a letter regarding withdrawing his appeal. Based upon his discussions with appellate
counsel, the Petitioner signed a waiver and withdrew his appeal.

       Trial counsel testified that he had 26 years of experience as a criminal defense
attorney and had participated in “hundreds” of trials. Trial counsel explained that after being
appointed to represent the Petitioner, he visited the Petitioner at the penal farm between five
and 10 times and did not have any problems communicating with the Petitioner.

                                               -3-
       Trial counsel stated that he had sufficient time to investigate the circumstances of the
offense and prepare for trial. Counsel explained that his trial strategy had been to challenge
the victim’s identification of the Petitioner and establish that the Petitioner had an alibi for
the time of the offense. Trial counsel hired an investigator to locate and interview potential
witnesses. Counsel spoke to the Petitioner’s alibi witnesses “on more than one occasion” and
discovered that they could not agree on some details. Based upon these inconsistencies, trial
counsel recommended to the Petitioner that they not call all of the alibi witnesses. The
Petitioner, however, wanted trial counsel to call all of the witnesses. Counsel recalled that
while testifying, some of the witnesses got “a little tied up” regarding times and how they
learned of the date of the offense.

       Trial counsel testified that he attempted to obtain the hospital sign-in sheet, but it was
not available. Counsel also attempted to obtain the medical records of the friend the
Petitioner was visiting at the time of the offense; however, the hospital refused to release the
records due to HIPPA regulations.

       Regarding the victim’s testimony, trial counsel testified that his primary goal was to
“convince the jury that [the victim] did not see [the Petitioner] but he saw somebody else”
because other than the victim’s identification, there was no other evidence linking the
Petitioner to the scene. To accomplish this goal, trial counsel cross-examined the victim
“very, very thoroughly.” At trial, the victim described the perpetrator as having only one
tattoo. Trial counsel presented evidence, however, that the Petitioner had tattoos on both
arms from his wrists to his shoulders, as well as tattoos across his chest. Trial counsel argued
that there was no way that someone could look at the Petitioner and “not see all those
tattoos.”

       Trial counsel explained that he did not call Officer McNinch to testify about the
victim’s initial description of the perpetrator because he did not want to bolster the victim’s
testimony with a more detailed description of the suspect. He further explained that he
typically does not subpoena a witness “if I think the testimony . . . is going to hurt my case.”

         Trial counsel acknowledged that he filed an untimely motion for new trial, and the
trial court refused to hear the motion. Trial counsel explained that it “fell through the cracks”
and was filed five days late. Trial counsel testified that in the motion, he alleged that the
evidence was insufficient and that the verdict was against the weight of the evidence based
upon the inconsistencies in the victim’s testimony and the strength of the alibi witnesses’
testimony. When asked about any other issues that could have been raised in a motion for
new trial, trial counsel stated, “[J]ust from looking back and thinking back about this trial,
I don’t see any appealable issues.” Trial counsel opined that the trial court had been “very,
very cautious” and “ran a good, clean trial.” When asked about the possibility of raising an

                                               -4-
issue of prosecutorial misconduct, trial counsel stated, “Oh no.            No, there was not
prosecutorial misconduct.”

       Robert Hardy, Jr., a licensed attorney, testified that trial counsel allowed him to sit in
and observe the Petitioner’s trial. Hardy explained that he was not appointed or retained on
the case, and he did not assist counsel in trying the case. According to Hardy, the Petitioner
and trial counsel had been working on the case “for a year or so and they had what would
appear to be a great game plan and a great strategy.” Hardy recalled that the perpetrator’s
identity was an issue at trial.

       Hardy testified that on the day of the Petitioner’s sentencing hearing–November 10,
2010–trial counsel had a scheduling conflict and asked Hardy to stand in for him. Hardy
explained that the sentencing hearing was “more or less a formality” as to the sentence the
Petitioner would receive based upon the Petitioner’s status as a career offender. After
sentencing, the trial court discussed the importance of filing a timely motion for new trial.
The court explained that the hearing date would be set outside the 30-day window and
warned that trial counsel should not wait until the day of the hearing to file the motion.
Hardy told trial counsel that he needed to file the motion for new trial by December 10, 2010,
and wrote a letter to trial counsel memorializing their conversation. Hardy recalled that on
the day of the scheduled hearing on the motion for new trial, the trial court ruled that it could
not hear the motion because it was untimely.

        Appellate counsel testified that he had been a practicing attorney for about 30 years
and had 25 years of experience as a criminal defense lawyer. Appellate counsel explained
that in the past 10 years, he had handled primarily appeals and post-conviction proceedings.
After the Petitioner retained appellate counsel to represent him in a direct appeal, counsel
filed a motion with the appellate court asking that it waive the timely notice of appeal
requirement, and the court granted the motion. Appellate counsel noted that the motion for
new trial filed by trial counsel only raised sufficiency of the evidence as a ground for relief.
He explained that even though the trial court did not hear the motion, this did not preclude
raising the issue of the sufficiency of the evidence on direct appeal.

        Appellate counsel visited the Petitioner at the penal farm, and they spoke at length
about the Petitioner’s appeal. However, after reviewing the trial record and discussing the
case with the Petitioner, appellate counsel opined that there was not a realistic possibility that
the Petitioner’s conviction could be reversed. He told the Petitioner that the only real issue
in the case was the credibility of the State’s witnesses, and therefore, he really did not have
a basis for an appeal. After their meeting, appellate counsel sent a letter to the Petitioner
memorializing their decision that the Petitioner would be withdrawing the appeal because he
had “no viable basis for an appeal.” Appellate counsel then filed a motion to withdraw the

                                               -5-
Petitioner’s appeal to which he attached a copy of the Petitioner’s waiver of his right to
appeal.

      Appellate counsel testified that he stood by his original conclusion that the Petitioner
had no appealable issues. He stated:

              I thought the case was well-tried and that I didn’t think–I didn’t
              think there were really any issues that were likely to have any
              effect on the outcome of the case. You know, while it’s true of
              course sufficiency of the evidence is always technically an issue,
              it’s almost never practically an issue. And because of the, you
              know, that is a question for the jury. And once the jury has
              made that determination, then it’s almost impossible to get it
              reversed. I mean, an appeal is not about factual issues. It’s
              about legal issues. And so, you know, you can always raise the
              issue of sufficiency of the evidence. But for instance, in this
              case, you know, the victim identified the [Petitioner] as the
              perpetrator without hesitation. And as far as sufficiency of the
              evidence goes, that’s the end of it. That’s all there is to it. The
              jury has made its decision.

        Regarding the issue of impeaching the victim’s trial testimony with the initial
description of the suspect the victim gave to Officer McNinch, appellate counsel agreed with
trial counsel that the prior statement should not come in at trial. Appellate counsel explained:

              I thought it was clear that that prior statement should not come
              into the trial because you’ve got–you had a fairly weak
              description at the trial by the victim of the tattoos of the
              defendant, but then you’ve got this statement right at the end of
              the offense which gives a much more accurate description of the
              tattoos. My, you know, reaction to that is there’s no way in heck
              that I would let that in front of the jury if I could help it.

       After the hearing, the post-conviction court entered a written order denying relief.
This appeal followed.

                                        II. Analysis

      Post-conviction relief is available only where the petitioner demonstrates that his or
her “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.


                                              -6-
Code Ann. § 40-30-103 (2013). In order to prevail on a post-conviction claim, the petitioner
must prove his or her allegations of fact by “clear and convincing evidence.” Tenn. Code
Ann. § 40-30-110(f) (2013); see Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). This
Court will not overturn a post-conviction court’s findings of fact unless the evidence
preponderates against the finding. Pylant v. State, 263 S.W.3d 854, 867 (Tenn. 2008);
Sexton v. State, 151 S.W.3d 525, 531 (Tenn. Crim. App. 2004). We will defer to the
post-conviction court’s findings with respect to the witnesses’ credibility, the weight and
value of their testimony, and the resolution of factual issues presented by the evidence.
Momon, 18 S.W.3d at 156. However, with respect to issues raising a mixed question of law
and fact, including a claim of ineffective assistance of counsel, our review is de novo with
no presumption of correctness. See Pylant, 263 S.W.3d at 867-68; Sexton, 151 S.W.3d at
531.

       The Post-Conviction Procedure Act provides that a trial judge may grant a delayed
appeal if it “finds that the petitioner was denied the right to an appeal from the original
conviction in violation of the Constitution of the United States or the Constitution of
Tennessee.” Tenn. Code Ann. § 40-30-113 (2013). In addition, Tennessee Code Annotated
section 40-30-111(a) provides that a court may order a delayed appeal if it finds that a
petitioner’s counsel was ineffective on direct appeal. “These statutes clearly indicate that a
defendant may receive a delayed appeal where there has been a denial of the effective
assistance of counsel in violation of the Sixth Amendment to the United States Constitution
and article I, section 9 of the Tennessee Constitution.” Wallace v. State, 121 S.W.3d 652,
656 (Tenn. 2003).

        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 two factors: (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. Id.; Henley
v. State, 960 S.W.2d 572, 580 (Tenn. 1997); Goad v. State, 938 S.W.2d 363, 370 (Tenn.
1996). 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.

        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. As the Tennessee
Supreme Court stated in Baxter,

              [T]he assistance of counsel required under the Sixth
              Amendment is counsel reasonably likely to render and rendering
              reasonably effective assistance. It is a violation of this standard
              for defense counsel to deprive a criminal defendant of a
              substantial defense by his own ineffectiveness or incompetence
              . . . . Defense counsel must perform at least as well as a lawyer
              with ordinary training and skill in the criminal law and must
              conscientiously protect his client’s interests, undeflected by
              conflicting considerations.

Baxter, 523 S.W.2d at 934-36 (quoting Beasley v. United States, 491 F.2d 687 (6th Cir.
1974)). Therefore, in order to prove that counsel was deficient, the petitioner must
demonstrate “that the 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.

        Additionally, a reviewing court “must be highly deferential and ‘must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.’” State v. Honeycutt, 54 S.W.3d 762, 767 (Tenn. 2001) (quoting Strickland, 466
U.S. at 689). This Court will not find counsel to have been ineffective merely because a
different strategy or procedure might have produced a more favorable result. Rhoden v.
State, 816 S.W.2d 56, 60 (Tenn. Crim. App. 1991). We recognize, however, that “deference
to tactical choices only applies if the choices are informed ones based upon adequate
preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992) (citing Hellard
v. State, 629 S.W.2d 4, 9 (Tenn. 1982)).

        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).

       Our Supreme Court has stated that although the prejudice prong typically requires
actual prejudice, “there is a small category of cases in which actual prejudice need not be
shown.” Wallace, 121 S.W.3d at 657 (citations omitted). One such situation is “where

                                              -8-
counsel’s performance is so deficient that it becomes presumptively prejudicial.” Id. (citing
United States v. Cronic, 466 U.S. 648, 658 (1984)). Moreover, “when ‘counsel entirely fails
to subject the prosecution’s case to meaningful adversarial testing,’ the process becomes
‘presumptively unreliable’ and proof of actual prejudice is not required.” Id. (quoting
Cronic, 466 U.S. at 659).

       In Wallace, trial counsel filed an untimely motion for new trial. Id. at 658. Although
the defendant was able to raise the issue of sufficiency of the evidence on direct appeal, our
Supreme Court determined that trial counsel’s actions “resulted in the failure to preserve and
pursue the available post-trial remedies and the complete failure to subject the State to the
adversarial appellate process.” Id. However, our Supreme Court expressly declined to create
a per se rule regarding the failure of trial counsel to file a timely motion for new trial. Id. at
659. Rather, “a petitioner in a post-conviction proceeding must establish that he or she
intended to file a motion for new trial and that but for the deficient representation of counsel,
a motion for new trial would have been filed raising issues in addition to sufficiency of the
evidence.” Id. (emphasis added).

 Trial Counsel’s Failure to Adequately Communicate, Investigate, and Prepare for Trial

       On appeal, the Petitioner contends that trial counsel was ineffective because he failed
to adequately communicate, investigate, and prepare for trial by obtaining “exonerating
records” that could have been used to bolster the Petitioner’s alibi defense. The State argues
that the post-conviction court properly found that the Petitioner failed to establish either
deficient performance or prejudice.

        Regarding this claim, the post-conviction court found that during the time span of the
offense, the Petitioner claimed that he was first with some family members and then at the
hospital visiting a friend who had been injured in an unrelated incident. Trial counsel hired
a private investigator to locate the friend and obtain any records from the hospital concerning
the Petitioner’s visit. Trial counsel testified, however, that the investigator was unable to
subpoena the friend or obtain any hospital records. The post-conviction court found that the
hospital told trial counsel that it did not have a record of the sign-in sheet, but the defense
“tried to get that.” The post-conviction court concluded, “As no records were offered during
the hearing of this petition, this court has no way of determining whether or not they existed,
were capable of being produced or would have helped the petitioner’s alibi.”

        We agree with the post-conviction court that the Petitioner has failed to establish
either deficient performance or prejudice. Trial counsel testified that he attempted to obtain
hospital records to prove that the Petitioner had been at the hospital at the time of the offense.
Despite trial counsel’s efforts, the hospital did not have any record of the Petitioner being

                                               -9-
there, and it would not release the medical records of the victim’s friend. The Petitioner has
not suggested any additional investigation or actions trial counsel could have taken that might
have produced these records. Additionally, the Petitioner has failed to establish that he was
prejudiced by trial counsel’s failure to obtain the records because he did not produce the
records at the post-conviction hearing or otherwise establish that they would have supported
his alibi defense. Thus, the Petitioner is not entitled to relief.

            Trial Counsel’s Failure to Challenge the Petitioner’s Illegal Arrest

        The Petitioner also asserts that trial counsel rendered ineffective assistance based upon
counsel’s failure to raise a claim of an illegal arrest under the Fourth Amendment. Regarding
this allegation, the post-conviction court found that the Petitioner failed to present any proof
to show that there were illegalities in the Petitioner’s arrest or the identification from the
photo lineup. We agree that the record is devoid of proof to support this claim and find that
the post-conviction court properly denied relief on this basis.

                   Trial Counsel’s Failure to Subpoena Officer McNinch

        The Petitioner contends that he was denied effective assistance of counsel based upon
trial counsel’s failure to subpoena Officer McNinch to impeach the victim’s testimony. The
Petitioner insists that the offense report taken by Officer McNinch contradicts the victim’s
description of the Petitioner at trial. Based upon our review of the record, we conclude that
the Petitioner has failed to establish either deficient performance or prejudice.

         Trial counsel testified that although there were some inconsistencies between the
victim’s trial testimony and the description the victim gave to Officer McNinch–such as the
location of the tattoos on one arm–the actual description of the tattoos in the officer’s report
was a much more detailed and accurate match to the Petitioner than the victim’s description
at trial. The post-conviction court found that although trial counsel wished to impeach the
victim with certain statements in the report, he did not want Officer McNinch to be able to
testify to the more accurate prior statement of the victim, which had been given right after
the burglary occurred. Trial counsel believed that such a tactic would have bolstered the
victim’s identification of the Petitioner. The post-conviction court found that rather than
calling Officer McNinch, trial counsel chose to impeach the victim using prior photographs
of the Petitioner’s tattoos and with the testimony of alibi witnesses. Appellate counsel agreed
that this was a reasonable trial strategy on the part of trial counsel. Appellate counsel
testified it would be “crazy” to let the jury hear about the victim’s initial description of the
perpetrator given to Officer McNinch.




                                              -10-
         Under the circumstances, we find that the decision not to call Officer McNinch to
testify was a reasonable tactical decision on the part of trial counsel and does not amount to
deficient performance. Further, the Petitioner has failed to establish any resulting prejudice
based upon trial counsel’s failure to call Officer McNinch. This Court will not find counsel
to have been ineffective merely because a different strategy or procedure might have
produced a more favorable result. Rhoden, 816 S.W.2d at 60. The Petitioner is not entitled
to post-conviction relief based upon the claim.

               Trial Counsel’s Failure to File a Timely Motion for New Trial

       The Petitioner also contends that he was denied effective assistance of counsel based
upon trial counsel’s failure to file a timely motion for new trial. He asserts that trial
counsel’s performance was deficient, and prejudice should be presumed because counsel
failed entirely to subject the prosecution’s case to the adversarial process. The State
concedes that trial counsel’s failure to file a motion for new trial in a timely manner was
deficient performance. Nonetheless, the State contends that the post-conviction court
properly denied relief because counsel’s deficient performance did not prejudice the
Petitioner.

        The post-conviction court found that trial counsel’s failure to file a timely motion for
new trial was deficient performance, and we agree. See Wallace, 121 S.W.3d at 657
(concluding that counsel’s failure to file a timely motion for new trial, as well as his failure
to withdraw so as to allow the defendant to file a pro se motion for new trial, was deficient
performance); Timothy J. Turner v. State, No. M2008-00372-CCA-R3-PC, 2009 WL
1175116, at *5-6 (Tenn. Crim. App. May 1, 2009) (granting post-conviction relief when it
was clear that the petitioner intended to file a motion for new trial, asserting issues other than
sufficiency of the evidence and sentencing, and that trial counsel failed to do so). The post-
conviction court concluded, however, that the Petitioner failed to prove prejudice because
both trial and appellate counsel testified that there were no viable issues that were waived by
the late filing of the motion for new trial. Regarding the issue, the post-conviction court
stated:

               This case was a clear case of whether or not the petitioner had
               been sufficiently identified, with the victim swearing he was
               committing a burglary and the [P]etitioner’s alibi witnesses
               swearing he was somewhere else. There have been no errors
               suggested that were committed by the trial judge which would
               have garnered the [P]etitioner a new trial had the motion been
               timely filed and heard. The trial itself was purely an issue of the
               credibility of the witnesses, and it is obvious from a reading of

                                              -11-
                the trial record that the [P]etitioner’s alibi witnesses ran into
                difficulties with their stories. [Appellate counsel] testified at the
                hearing that there simply were no appellate issues to raise except
                the sufficiency of the evidence, which was bound to fail as it
                was a jury issue, because the proof was legally sufficient.

       The post-conviction court further found that the Petitioner decided to waive his right
to an appeal following a discussion with appellate counsel.2 It found that appellate counsel
memorialized his discussion with the Petitioner in a letter that stated:

                You are withdrawing the appeal simply because you have no
                viable basis for an appeal. The only real issue in your case was
                the credibility of the state’s witnesses and the jury is the final
                arbiter of that.

                As for a post-conviction, you can file one and if you want to hire
                me to file it I will. I merely advised you that in my professional
                opinion you would have no chance of winning a post-
                conviction.

         Following our review, we conclude that the record supports the post-conviction
court’s finding that the Petitioner failed to establish prejudice. The Petitioner did not
establish that but for trial counsel’s deficient performance, a motion for new trial would have
been filed raising issues in addition to sufficiency of the evidence. In the motion for new
trial filed by trial counsel, only the issue of the sufficiency of the evidence was raised. When
asked about any other issues that could have been raised in a motion for new trial, trial
counsel stated, “[J]ust from looking back and thinking back about this trial, I don’t see any
appealable issues.” Trial counsel opined that the trial court had been “very, very cautious”
and “ran a good, clean trial.” When asked about the possibility of raising an issue of
prosecutorial misconduct, trial counsel stated, “Oh no. No, there was not prosecutorial
misconduct.”

       Likewise, appellate counsel testified that after reviewing the trial record and
discussing the case with the Petitioner, he told the Petitioner that the only real issue in his


        2
          We do not address the issue of the effect of the Petitioner’s previous waiver of his direct appeal
on his ability to now obtain a delayed appeal. The State has not asserted, either at the post-conviction
hearing or on appeal, that the Petitioner is not entitled to a delayed appeal based upon his previous waiver.
Moreover, as the issue of whether the Petitioner’s waiver of appeal was knowing and voluntary was not
before the post-conviction court, the record before us is insufficient to address the question.

                                                    -12-
case was the credibility of the State’s witnesses, and therefore, he had “no viable basis for
an appeal.” Appellate counsel testified that the Petitioner agreed to withdraw the appeal
because there was no legitimate basis for appeal.

       Because the Petitioner failed to prove that but for counsel’s deficient performance, he
would have filed a motion for new trial raising an issue in addition to sufficiency of the
evidence, see Wallace, 121 S.W.3d at 659, the Petitioner has not established prejudice, and
the post-conviction court properly denied relief.

                 Appellate Counsel’s Failure to Request a Delayed Appeal

       The Petitioner argues that he received ineffective assistance of counsel based upon
appellate counsel’s advice that the Petitioner had no legitimate basis for an appeal and
appellate counsel’s failure to request a delayed appeal. The State asserts that the post-
conviction court properly denied relief. We agree with the State.

        In its order denying relief, the post-conviction court found that after he was retained,
appellate counsel filed a motion in this Court asking that the Court waive the timely notice
of appeal in the Petitioner’s case. After this Court granted the motion, appellate counsel filed
a notice of appeal on the Petitioner’s behalf within the ten days permitted by the Court’s
order. The Petitioner made the decision to waive his appeal after a long discussion with
appellate counsel. Regarding appellate counsel’s advice to the Petitioner that there were no
legitimate basis for an appeal, the post-conviction court concluded that the Petitioner had
failed to show that this advice was deficient or that he suffered any prejudice by waiving his
appeal. The court explained that the Petitioner had suggested “no appellate issue which
would have had any chance of success.” The court concluded, “The sole issue in the
petitioner’s trial was one of identification, which was resolved by the jury.”

      The record supports this determination by the post-conviction court.              At the
evidentiary hearing on the petition, appellate counsel testified:

              Q.     And in your opinion, having done this for 10 years and
              having been a criminal defense attorney for 20 years, you said
              there was no appealable issue?

              A.     Right. And I stand by that. I think that’s absolutely
              correct.




                                              -13-
Trial counsel likewise testified that he did not see any appealable issues based upon the trial
record. On appeal, the Petitioner has failed to demonstrate that appellate counsel’s advice
in this regard was deficient.

        The Petitioner also faults appellate counsel for failing to seek a delayed appeal
through filing a petition for post-conviction relief. He states that if such a petition had been
granted, his judgment of conviction would have been reentered, and appellate counsel could
have filed a timely motion for new trial, preserving the Petitioner’s appellate issues. It is
clear, however, that appellate counsel’s alleged deficiency did not affect the Petitioner’s
ability to file the instant petition for post-conviction relief in a timely manner or request a
delayed appeal. Moreover, the Petitioner has failed to establish that he would have raised
an issue in addition to sufficiency of the evidence in his motion for new trial, and this issue
could have been the basis for an appeal to this Court without the filing of a timely motion for
new trial. Thus, we cannot conclude that the Petitioner suffered any prejudice from appellate
counsel’s alleged deficiency, and the Petitioner is not entitled to relief.

                                       III. Conclusion

       For the foregoing reasons, the judgment of the trial court is affirmed.


                                                     _________________________________
                                                     ROBERT L. HOLLOWAY, JR., JUDGE




                                              -14-
