                                                                                         09/08/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs August 1, 2017

                  EVERETT RUSS v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                         No. 10-07456  Chris Craft, Judge


                            No. W2017-00133-CCA-R3-PC


The petitioner, Everett Russ, appeals the denial of his petition for post-conviction relief
from his 2012 Shelby County Criminal Court jury convictions of two counts of
aggravated sexual battery. Discerning no error, we affirm the denial of post-conviction
relief.

           Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and TIMOTHY L. EASTER, JJ., joined.

Sharon Fortner, Memphis, Tennessee, for the appellant, Everett Russ.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Melanie Cox,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

             A Shelby County Criminal Court jury convicted the petitioner of two
counts of aggravated sexual battery for acts of sexual abuse perpetrated against his minor
daughter.

                      Regarding the first count, the record reflects that the
              [petitioner] lived down the street from the victim, who lived
              with her mother, and that the [petitioner] visited the victim’s
              house on April 11, 2010. The victim was sleeping when the
              [petitioner] came to her bedroom, pulled her panties below
              her knees, rubbed her vagina on the outside with his fingers,
              and licked her “private part.” The [petitioner] stopped when
              the victim’s brother entered the room. He saw the [petitioner]
              on his knees between the victim’s legs and saw the victim
              only wore panties, which were pulled to her knees. When her
              brother asked her if the [petitioner] licked her, she was too
              scared to tell him but then admitted the [petitioner] licked her.
              He sent his uncle a text message that said, “My dad is licking
              my private part,” but called his uncle to clarify that the
              [petitioner] was licking the victim. The uncle told the
              victim’s brother to tell his mother what he saw, and he did.
              The victim’s mother woke the [petitioner], and they argued.
              The victim’s brother called 9-1-1 during the argument.

                      Regarding the second count, the record reflects that a
              second incident involving the [petitioner] and the victim
              occurred when the victim was eight years old before the April
              11, 2010 incident. The victim was lying on the [petitioner]’s
              couch at his house and watching Charlotte’s Web when the
              [petitioner] licked her private part. No one else was at the
              [petitioner]’s house at the time.

State v. Everett Russ, No. W2012-00461-CCA-R3-CD, slip op. at 1-2 (Tenn. Crim. App.,
Jackson, Dec. 9, 2013), perm. app granted (Tenn. May 14, 2014). This court affirmed
the petitioner’s convictions, see id., slip op. at 8, and, following a remand for
reconsideration by our supreme court, affirmed the petitioner’s sentences, see State v.
Everett Russ, No. W2012-00461-CCA-R3-CD, slip op. at 2 (Tenn. Crim. App., Jackson,
July 14, 2014) (Russ II).

               The petitioner filed a timely petition for post-conviction relief on April 21,
2015, arguing, among other things, that he was deprived of the effective assistance of
counsel. In an amended petition for post-conviction relief, the petitioner alleged that his
counsel performed deficiently by failing to interview potential witnesses, failing to
present the victim’s mother as a witness at trial, failing to adequately question the
victim’s credibility at trial, failing to “make relevant objections,” failing to properly
investigate the case, failing to adequately prepare the petitioner for trial, failing to “act as
a zealous advocate at trial,” failing to keep his communications with the petitioner
confidential, failing to properly prepare the petitioner’s mother to testify at trial, and
failing to object to the jury instructions on the lesser included offenses. He claimed that
trial counsel’s sundry failures inured to his prejudice, thereby entitling him to post-
conviction relief.



                                              -2-
               At the October 21, 2016 hearing on the petition, the petitioner’s brother,
Sunil Sharma, testified that at the time of the offenses, he lived with the petitioner and
their mother and that he had never witnessed anything unusual between the petitioner and
the victim. He said that the petitioner’s counsel did not contact him prior to the
petitioner’s trial. Mr. Sharma testified that he was often present when the victim came to
the residence he shared with the petitioner and their mother. Mr. Sharma acknowledged
that he did not attend the petitioner’s trial because he was out of town.

               The petitioner’s mother, Mary Sharma, testified that the petitioner and Mr.
Sharma lived with her at the time of the offenses and that she was “home all the time.”
She said that the victim visited the petitioner at her home every weekend. Ms. Sharma
testified that the petitioner’s trial counsel called her as a witness at the petitioner’s trial
and that he prepared her in advance of trial for the experience. She said that she initially
“felt prepared” to testify but that her “mental condition deteriorated” following her arrest
for contempt “two hours before court.”1 She said that although she was incarcerated
during the trial, the petitioner’s counsel brought her a dress to wear to court for her
testimony. Ms. Sharma insisted that she wanted to testify at the petitioner’s trial because
she “wanted to tell the truth about” the victim’s “being around her mother with a lot of
different men.” Ms. Sharma said that she had asked the victim whether “anybody ever
touched her” because she “was concerned because her mother kept a lot of different
men[] in the house.” The victim always “said no, she had never been touched.” With
regard to the petitioner’s relationship with the victim’s mother, Ms. Sharma said that the
two had “a civilized position with each other.”

               During cross-examination, Ms. Sharma admitted that the court paid for her
round trip airfare to come from Atlanta to testify at the petitioner’s trial and that she did
testify during the trial. She admitted that she was arrested during the petitioner’s trial but
claimed that it was a “false[]” arrest. Ms. Sharma said that she was present at the hospital
when the victim was born and that the victim “stayed maybe a couple of months with”
her and then she had no contact with the victim until the victim “was about seven or
eight.”

              The petitioner testified that trial counsel met with him “[o]n several
occasions” both at the jail and in court but that their “longest discussion” lasted “fifteen,
twenty minutes.” The petitioner said that he understood that he had been charged with
one count of rape of a child but claimed that he “knew” that he “couldn’t be convicted of
rape of a child because it was no sexual penetration or DNA analysis.” He insisted that
he “didn’t understand anything about the sexual battery.” He said that he could not

1
         The post-conviction court’s order indicates that Ms. Sharma was arrested for contempt of court
after she attempted to intimidate the victim and the victim’s mother in the presence of two jurors.
                                                 -3-
comprehend how he could “be charged with aggravated sexual battery and all the
inconsistent statements . . . given . . . in [the] discovery pack from the preliminary hearing
and from . . . the Affidavit of complaint and from the statements from” the State’s expert
witnesses. The petitioner said that he wanted Keeshaun Pruitt, Larry Steele, Mr. Sharma,
and Ms. Sharma to testify at his trial. He said he also wanted “one of [his] co-
defendants” to testify at trial.2 The petitioner acknowledged that neither he nor post-
conviction counsel had been able to contact Mr. Pruitt or Mr. Steele, explaining, “The
reason is because the addresses and phone numbers that we had are outdated.”

              The petitioner said that he met co-counsel for the first time on the day of
his trial. He said that he was surprised when co-counsel took an active role in the case
because he had not had an opportunity to speak to co-counsel. The petitioner added that
counsel and co-counsel “were having certain conversations” instead of paying attention
to witness testimony, which prevented counsel from “object[ing] to certain things” and
bringing “up certain issues during trial.” The petitioner said that counsel did a poor job
of cross-examining the State’s witnesses.

                The petitioner testified that counsel did not adequately prepare him to
testify at trial, saying, “I didn’t fully understand the statement that I gave the Officers
could have been used in trial. If I would have understood this I wouldn’t never testify
during my trial.” The petitioner said that he believed his pretrial statement to be
inadmissible because he was intoxicated when he gave it.

             The petitioner alleged that counsel revealed confidential statements to the
prosecution. He explained:

                      During . . . my cross examination the State . . . asked
               me a question do you feel [the victim is] only doing what her
               mom tell[s] her. This is something that I consistently told
               [counsel], and during the statement I wondered where she got
               that from because this was something I consistently told
               [counsel].

                       And I felt like he probably was saying things that I was
               telling him in confidence . . . for him being my lawyer he
               finally told her a few things that I was telling him.




2
         The record gives no indication whom the petitioner was referencing during this exchange given
that there were no co-defendants in the petitioner’s case.
                                                 -4-
             The petitioner said that he wanted the victim’s mother to testify at trial to
show the antagonistic nature of their relationship. He claimed that her testimony would
have provided a motive for the victim to fabricate the charges.

              The petitioner also expressed dissatisfaction with his appellate counsel,
claiming that appellate counsel did not meet with him, speak to him on the telephone, or
write to him prior to filing an appellate brief. He said that he wanted appellate counsel to
address on appeal the propriety of the lesser included offense instructions as well as
inconsistent statements made by the State’s witnesses.

               During cross-examination, the petitioner acknowledged that trial counsel
provided him with a copy of the discovery materials and a transcript of the preliminary
hearing prior to his trial. The petitioner expressed regret at having testified at trial,
reiterating his earlier claim that he would not have testified had he known that the State
would be permitted to use his pretrial statement during cross-examination. The petitioner
said that he was intoxicated after using alcohol and drugs at the time he provided the
statement. He conceded having consumed alcohol and drugs while the victim was in his
care but insisted that he only used drugs and alcohol after he put the victim to bed.

               The petitioner insisted that the victim’s mother had gotten the victim to
fabricate the allegations after the petitioner indicated that he was going to seek custody of
the victim. He acknowledged, however, that he never filed a petition for custody in the
juvenile court. He admitted that the victim’s mother had “full custody” of the victim and
that he did not pay any child support.

             The petitioner admitted that neither Mr. Steele nor Mr. Pruitt was present in
the house on the day of either offense or when he was arrested. He said that he “was
around both of those men” earlier in the day on the day of his arrest and that “they could
have showed the Court that [the victim’s mother] has an allegation to lying.”

              The petitioner acknowledged that he rejected the State’s plea offer of an
eight-year sentence in exchange for his pleading guilty to a single count of aggravated
sexual battery.

              Appellate counsel testified that he was appointed to represent the petitioner
following the denial of his motion for new trial. He said that he raised what he believed
to be two “really solid issues.” One related to the State’s failure to respond to his motion
for a bill of particulars and the other related to the sentencing. Appellate counsel
acknowledged that he never had a face-to-face meeting with the petitioner because the
petitioner was sent to prison more quickly than is typical. He testified, however, that the
lack of a meeting did not hamper his ability to represent the petitioner on appeal. With
                                             -5-
regard to the petitioner’s claim that he failed to include as grounds for relief on appeal
those issues sent to him by the petitioner, appellate counsel said that “the record is what it
is and it will usually dictate where we go.”

               Trial counsel testified that he was appointed to represent the petitioner at
the general sessions court level prior to the preliminary hearing. He said that he met with
the petitioner both at the jail and at the courthouse on court dates. He provided a copy of
all the discovery materials to the petitioner and discussed those materials with the
petitioner in preparation for the trial. He said that his theory of defense was “just
absolute innocence.” Counsel recalled that screen captures of text messages indicated
that the petitioner was texting back and forth with another person at the same time the
victim alleged that one of the offenses occurred. Counsel successfully sought
introduction of those messages.

              Counsel said that in addition to conducting his own investigation and
research, he retained the services of a private investigator. Counsel testified that he had
co-counsel sit with him at trial to “help observe what was going on” but that “the bulk of
the preparation and handling of the trial” was his responsibility.

               Counsel expressed satisfaction with his cross-examination of the young
victim as well as her young brother, who had witnessed one of the offenses. He agreed
that cross-examining children is a delicate matter. Counsel said that he did not call the
victim’s mother as a witness because “she was not present for any of the events.”
Counsel had no specific recollection of reviewing the petitioner’s pretrial statement with
the petitioner while preparing him to testify but said that it was his standard practice to do
so. In any event, counsel said that the statement was “self-serving” and that nothing in
the statement “would have harmed” the petitioner’s case.

                During cross-examination, counsel acknowledged that the petitioner’s was
his first jury trial but said that he felt prepared for trial. Counsel recalled that there were
a number of inconsistencies in the prior statements provided by the victim and her brother
and that he attempted to draw the jury’s attention to the inconsistencies without becoming
overly aggressive with the child witnesses.

                Counsel testified that he “assume[d]” that he advised the petitioner to
testify to tell his side of the story but that he “left the decision in [the petitioner’s] hands.”
Counsel said that he “assume[d] that [he] would have” told the petitioner that his
statement to the police would be used against him if he testified at trial. He said that if he
did not tell the petitioner the statement could be used “it’s because there’s nothing in the
statement that is prejudicial.”

                                               -6-
             At the conclusion of the hearing, the post-conviction court took the case
under advisement. The court later denied post-conviction relief in a written order. We
will summarize the findings of the trial court as to each of the petitioner’s appellate
claims during our consideration of those claims below.

               In this appeal, the petitioner contends that the post-conviction court erred
by denying relief, claiming prejudice flowing from his counsel’s failure “to conduct a
reasonable investigation into the facts and circumstances surrounding the case,” failure
“to properly advise [the petitioner] during trial,” failure “to properly prepare and inform
[the petitioner] regarding his right to testify,” and failure “to successfully cross-examine
the child victim and witness regarding their inconsistent statements.” Any claims of the
ineffectiveness of appellate counsel have been abandoned for purposes of this appeal.

              We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “when the 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.” T.C.A. § 40-30-103. A post-
conviction petitioner bears the burden of proving his or her factual allegations by clear
and convincing evidence. Id. § 40-30-110(f). On appeal, the appellate court accords to
the post-conviction court’s findings of fact the weight of a jury verdict, and these findings
are conclusive on appeal unless the evidence preponderates against them. Henley v.
State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn.
Crim. App. 1997). By contrast, the post-conviction court’s conclusions of law receive no
deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453
(Tenn. 2001).

               Before a petitioner will be granted post-conviction relief based upon a
claim of ineffective assistance of counsel, the record must affirmatively establish, via
facts clearly and convincingly established by the petitioner, that “the advice given, or the
services rendered by the attorney, are [not] within the range of competence demanded of
attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and
that counsel’s deficient performance “actually had an adverse effect on the defense,”
Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, 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.” Strickland, 466 U.S. at
694. Should the petitioner fail to establish either deficient performance or prejudice, he is
not entitled to relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).
Indeed, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697.

                                             -7-
               When considering a claim of ineffective assistance of counsel, a reviewing
court “begins with the strong presumption that counsel provided adequate assistance and
used reasonable professional judgment to make all significant decisions,” Kendrick v.
State, 454 S.W.3d 450, 458 (Tenn. 2015) (citing Strickland, 466 U.S. at 689), and “[t]he
petitioner bears the burden of overcoming this presumption,” id. (citations omitted). We
will not grant the petitioner the benefit of hindsight, second-guess a reasonably based trial
strategy, or provide relief on the basis of a sound, but unsuccessful, tactical decision
made during the course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn.
Crim. App. 1994). Such deference to the tactical decisions of counsel, however, applies
only if the choices are made after adequate preparation for the case. Cooper v. State, 847
S.W.2d 521, 528 (Tenn. Crim. App. 1992).

              A claim of ineffective assistance of counsel is a mixed question of law and
fact. Kendrick, 454 S.W.3d at 457; Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010);
State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453,
461 (Tenn. 1999). When reviewing the application of law to the post-conviction court’s
factual findings, our review is de novo, and the post-conviction court’s conclusions of
law are given no presumption of correctness. Kendrick, 454 S.W.3d at 457; Fields, 40
S.W.3d at 457-58; see also State v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

              In our view, the record fully supports the denial of relief in this case.

               Although the petitioner contends that trial counsel failed “to conduct a
reasonable investigation into the facts and circumstances surrounding the case,” he
presented no evidence at the evidentiary hearing to support this assertion. The post-
conviction court found that counsel secured the services of an investigator who “has an
unimpeachable reputation in Memphis” and that counsel conducted his own pretrial
investigation, which included interviewing witnesses. The court added that the petitioner
had failed to make any “suggestion as to any other preparation the attorney needed to
give the petitioner prior to trial that was not already done.” The petitioner presented no
fact or circumstance of consequence at the hearing that counsel failed to uncover during
his pretrial investigation.

              The petitioner’s claims that counsel failed “to properly advise [the
petitioner] during trial” and failed “to properly prepare and inform [the petitioner]
regarding his right to testify” fail for a similar lack of proof. The petitioner testified at
the evidentiary hearing that counsel failed to inform him that the State could use his
statement to the police during cross-examination and that, had he known this, he would
have elected not to testify. The post-conviction court deemed the petitioner’s testimony
on these points “highly unbelievable” and “simply not credible.” The post-conviction
court noted that a full Momon hearing occurred, during which the petitioner expressed
                                             -8-
that he “wished to testify in his own defense, even understanding that he would be
impeached” by the prior “convictions he had obtained over the last 9 years after the
victim was born.” The post-conviction court also concluded that the petitioner’s pretrial
statement “rather than impeaching his credibility, instead reinforced his testimony that he
committed no crime.”

              With regard to the petitioner’s claim about trial counsel’s cross-
examination of the victim and her brother, the post-conviction court observed that the
petitioner presented “no witness statements or preliminary hearing transcripts . . . as
exhibits in the proof at the hearing.” Based upon the post-conviction court’s review of
the trial record, the post-conviction court concluded that “[w]hat the petitioner calls
inconsistent statements were not inconsistent with the witness’s testimony at trial.” The
court found “the petitioner’s testimony about the existence of inconsistent statements . . .
vague, conclusory, and hard to understand.” The court also noted that counsel was not
questioned at the evidentiary hearing “about any prior inconsistent statement he failed to
use that might have impeached either child’s testimony or made a difference.” The court
described counsel’s cross-examination of the child witnesses as “a very thorough,
competent cross-examination . . . with a good balance of consideration and respect for
each child’s age shown along with meaningful confrontation as an adversary.” The
record fully supports each of these findings.

              Accordingly, we affirm the judgment of the trial court.


                                                   _________________________________
                                                  JAMES CURWOOD WITT, JR., JUDGE




                                            -9-
