                                                                                       11/01/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs September 26, 2018

         TERRENCE JUSTIN FEASTER v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Knox County
                         No. 108205    Steve Sword, Judge


                             No. E2018-00193-CCA-R3-PC


The petitioner, Terrence Justin Feaster, appeals the denial of his petition for post-
conviction relief, which petition challenged his 2012 Knox County Criminal Court jury
convictions of attempted voluntary manslaughter, aggravated assault, and false
imprisonment. In this appeal, the petitioner contends that he was deprived of the
effective assistance of counsel on appeal. Discerning no error, we affirm.

            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 ROBERT L. HOLLOWAY, JR., JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Terrence Justin Feaster.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Leslie Nassios,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

              A Knox County Criminal Court jury convicted the petitioner of attempted
voluntary manslaughter, aggravated assault, and false imprisonment related to an incident
involving his girlfriend. Our supreme court summarized the facts of the case:

                      At trial, the State’s proof established that the
              [petitioner] had been living at the victim’s residence for
              approximately two weeks before she drove him to a sports bar
              on the night of May 26, 2010. After an hour or so, the
              [petitioner] became “really drunk,” and so the victim drove
              him back to her residence. According to the victim, when she
went to her bathroom, the [petitioner] broke through the door
and “just started beating [her].” She testified that he then
dragged her into the bedroom, where he tied her feet to an
entertainment center and threatened to kill her if she moved.
The victim recalled that she momentarily lost consciousness,
and when she awoke, she was able to free herself and run to
the residence of a neighbor, who called 911. The police
officers who responded to the scene found significant
amounts of blood in the bathroom, bedroom, dining room,
and living room.

       After being transported by ambulance to a hospital, the
victim remained unconscious for the next three days. Dr.
William Snyder Jr., the victim’s treating neurosurgeon,
diagnosed a temporal skull fracture, a dislocation of the jaw,
several lacerations on the forehead and scalp, nasal fractures,
bilateral pulmonary contusions, and soft-tissue injuries to the
arms. . . . The victim denied that she and the [petitioner] had
argued prior to the assault or that she had threatened him with
a gun.

        The [petitioner] testified that he and the victim met a
man called “D” at the bar. When the victim left the bar with
“D,” the [petitioner] followed her outside and found her
“kissing on” him. The [petitioner] claimed that he became so
angry and embarrassed that he began walking home. He
contended that the victim followed, driving his vehicle, and
persuaded him to get inside. He recalled that they began to
argue and, after they arrived at the victim’s residence, she
initiated the altercation with two or three punches to his face.
According to the [petitioner], when he retaliated by hitting
her in the nose, the victim pointed a pistol in his direction.
He asserted that he “grabbed the pistol from her,” and when
she continued to attack him, he used it to strike her in the
head, eventually knocking her to the bathroom floor.

       The [petitioner] claimed that the victim then asked him
to remove all the drugs and guns from the property and to call
911. The [petitioner] maintained that he drove to the
residence of a friend, who agreed to call 911 but refused to
accept the drugs and two guns that he had brought with him.
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State v. Feaster, 466 S.W.3d 80, 82-83 (Tenn. 2015). The trial court imposed sentences
of 12 years for the petitioner’s conviction of attempted voluntary manslaughter, 14 years
for the conviction of aggravated assault, and 11 months and 29 days for the conviction of
false imprisonment and ordered all the sentences to be served consecutively. See id. at
83.

               On May 31, 2016, the petitioner filed a timely petition for post-conviction
relief, alleging, among other things, that he was deprived of the effective assistance of
counsel. Following the appointment of counsel, the petitioner filed an amended petition
for post-conviction relief, in which petition he claimed that his counsel performed
deficiently by failing to challenge the consecutive alignment of his sentences on direct
appeal.

               At the November 30, 2017 evidentiary hearing, the petitioner did not claim
entitlement to a new trial and instead asked only for a new sentencing hearing. The
petitioner did not testify.

              Counsel, who represented the petitioner at trial and during the first tier of
his direct appeal, testified that he did not raise the sentence alignment issue because he
“was focused on the argument that the counts should merge.” Counsel added that he
thought the trial judge had “said what he needed to say on the record” and that it would
have been difficult to have the judge’s ruling overturned under an abuse of discretion
standard of review. Counsel recalled that the petitioner’s lengthy criminal history
presented “a tough burden to overcome” at the sentencing hearing. Counsel said that he
believed the trial court’s findings with regard to the petitioner’s extensive criminal
history and his having been a dangerous offender were supported by the record.

              At the conclusion of the hearing, the post-conviction court took the matter
under advisement. In its order denying post-conviction relief, the court accredited
counsel’s testimony that he elected not to pursue the issue of consecutive sentencing
because “he did not think a challenge on consecutive sentencing would be successful”
and deemed counsel’s decision “reasonable based upon the deference to be given a
judge’s discretion on this matter and the record in this case.”

              In this appeal, the petitioner reiterates his claim that his counsel should
have raised the issue of consecutive sentence alignment on direct appeal and that
counsel’s failure to do so prejudiced the outcome of his appeal. The State asserts that the
post-conviction court did not err by denying relief.

              We view the petitioner’s claim with a few well-settled principles in mind.
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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.” Id. 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.

               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).

            “Counsel is not constitutionally required to argue every issue on appeal,”
State v. Matson, 729 S.W.2d 281, 282 (Tenn. Crim. App. 1986) (quoting State v.
                                             -4-
Swanson, 680 S.W.2d 487, 491 (Tenn. Crim. App. 1984)), and, “[e]xperienced advocates
since time beyond memory have emphasized the importance of winnowing out weaker
arguments on appeal and focusing on one central issue if possible, or at most on a few
key issues,” Jones v. Barnes, 463 U.S. 745, 751-52 (1983). The determination to raise or
forego an issue on appeal is a matter “generally within appellate counsel’s sound
discretion,” Carpenter v. State, 126 S.W.3d 879, 887 (Tenn. 2004) (citing Jones, 463
U.S. at 751; King v. State, 989 S.W.2d 319, 334 (Tenn. 1999); Cooper v. State, 849
S.W.2d 744, 747 (Tenn. 1993)), and, as a result, counsel’s decision in this regard “should
be given considerable deference” on appeal, Carpenter, 126 S.W.3d at 887 (citing
Campbell v. State, 904 S.W.2d 594, 597 (Tenn. 1995); Strickland, 466 U.S. at 689).

              This court must review the merits of the omitted issue to determine whether
counsel’s failure to present the issue on appeal equates to ineffective assistance. See
Carpenter, 126 S.W.3d at 887. “[U]nless the omitted issue has some merit,” the
petitioner can establish neither that his counsel performed deficiently nor that he was
prejudiced by the omission. Id.

              At the evidentiary hearing, counsel testified that he deliberately chose to
forego the sentence alignment issue in favor of the merger issue because he did not
believe the sentencing issue would be successful on appeal. In our view, counsel’s
decision was reasonable. On appeal, the reviewing court must give “deference to the trial
court’s exercise of its discretionary authority to impose consecutive sentences if it has
provided reasons on the record establishing at least one of the seven grounds listed in
Tennessee Code Annotated section 40-35-115(b)[.]” State v. Pollard, 432 S.W.3d 851,
861 (Tenn. 2013). The presentence report established that the 34-year-old petitioner had
an extensive criminal history that dated back to 1994, when he was convicted at age 17 of
“assault and battery of high and aggravated nature” in Chester County, South Carolina.
His record included three prior convictions of assault and one conviction of child
endangerment in addition to six prior convictions of drug possession and convictions of
shoplifting and weapons possession. The petitioner managed over the course of his life
to obtain convictions in South Carolina, Georgia, Texas, and Tennessee. Regardless of
the propriety of the trial court’s findings that the petitioner was a professional criminal
and a dangerous offender, the record fully supports the trial court’s conclusion that the
petitioner was “an offender whose record of criminal activity is extensive.” T.C.A. § 40-
35-115(b)(2); see also State v. Adams, 973 S.W.2d 224, 231 (Tenn. Crim. App. 1997)
(“Extensive criminal history alone will support consecutive sentencing.”).               In
consequence, any challenge to the consecutive alignment of the petitioner’s sentences
would not have been successful on appeal.

             Accordingly, we affirm the judgment of the post-conviction court.

                                            -5-
       _________________________________
      JAMES CURWOOD WITT, JR., JUDGE




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