                                                                                           07/11/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs May 2, 2018

                  RAPHAEL LOVE v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                     No. 05-08431       Paula L. Skahan, Judge
                      ___________________________________

                           No. W2017-01515-CCA-R3-PC
                       ___________________________________


Petitioner, Raphael Love, appeals the denial of his petition for post-conviction relief.
Petitioner argues that he received ineffective assistance of counsel. After a review of the
record and the briefs of the parties, we determine Petitioner has failed to establish that he
received ineffective assistance of counsel. Accordingly, we affirm the judgment of the
post-conviction court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ALAN E. GLENN and
J. ROSS DYER, JJ., joined.

Ernest J. Beasley (on appeal) and Paul Guibao (at hearing), Memphis, Tennessee, for the
appellant, Raphael Love.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Pam Stark, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                        OPINION

       Over thirteen years ago, Petitioner and two of his friends shot and killed Jessica
Sisson and David McVay, innocent bystanders to an act of revenge orchestrated by the
Petitioner. State v. Rapheal Love, No. W2007-01635-CCA-R3-CD, 2008 WL 3892020,
at *1 (Tenn. Crim. App. Aug. 21, 2008), no perm. app. filed. Petitioner was only sixteen
years old at the time of the offense. Id. According to Petitioner, three men fired shots at
Petitioner earlier in the evening as a part of a long running feud. Id. Petitioner sought
out the men in an effort to retaliate. Id. After finding the men in a crowd on the street, a
confrontation led to Petitioner and his friends firing their guns multiple times. Id.
Bullets fired from the weapons held by Petitioner and his friends struck and killed the
victims, not the men who were the targets of Petitioner’s revenge. Id. at 2.

       Testimony from the post-conviction hearing revealed that the investigation into the
death of the victims led the police to Petitioner. The police arrested Petitioner in the
presence of Natalie Love-Streeter, his cousin and legal guardian. Ms. Love-Streeter
claimed she told Petitioner not to say anything to the police and that they had to get a
lawyer. Subsequently, the police took Petitioner to the police station. While already on
her way to the police station for a different matter, Clara Easley, Ms. Love-Streeter’s
mother and Petitioner’s former guardian, received a call from Ms. Love-Streeter telling
her that Petitioner had been taken into custody. When Ms. Easley arrived at the police
station, she spoke with a detective who asked if she wanted to speak with Petitioner.

       According to Petitioner, the police attempted to get him to make a statement
“[t]hree to four” times before he finally made a statement. Some communications were
held between Petitioner and the police with Ms. Easley as the intermediary. Eventually,
Ms. Easley held a private conversation with Petitioner and encouraged him to make a
statement. Ms. Easley told Petitioner “[t]o tell the truth.” At no point did Petitioner
consult an attorney or obtain representation by an attorney.             After receiving
encouragement from Ms. Easley, Petitioner gave a statement to the police. Ms. Easley
remained with Petitioner as he gave his statement. However, Ms. Easley had no
experience with the police or the effects of statements given to them. When Ms. Love-
Streeter arrived at the police station, a police officer informed her that Petitioner was
already making a statement.

       Petitioner admits that he received no promises from the police in exchange for his
statement, and this was not Petitioner’s first time dealing with the police because he had
been arrested for truancy and unlawful possession of a weapon in the past. However, this
was Petitioner’s first time giving a formal statement, and Petitioner claims he did not
fully understand his rights at the time he gave his statement. Though he was sixteen
years old, Petitioner had advanced to only the ninth grade in school because he had been
held back twice due to his grades. Petitioner “admitted his involvement” with the crime
in the statement. According to Petitioner, he “admitted being there and being the
shooter[.]”

       After Petitioner made a statement to the police, he was charged with two counts of
murder. Petitioner’s case began in juvenile court but was eventually transferred to
Shelby County Criminal Court in January of 2007. Petitioner’s trial date was set for May
of 2007. Trial counsel, a Shelby County Assistant Public Defender, was appointed to
represent Petitioner. In the period of time between the initiation of the case and
Petitioner’s trial date, Petitioner met with trial counsel “four or five times, face to face.”
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Trial counsel did not recall anything occurring in those meetings that would have led him
to believe that Petitioner could not understand him. Trial counsel testified, “If in my
communications with a client, if I feel like he or she doesn’t understand me, or there’s
some kind of serious communication problem, usually I’ll try to dig a little bit deeper, try
to find out what is going on.”

       During his conversation with trial counsel, Petitioner made trial counsel aware that
Ms. Love-Streeter had instructed the police not to talk to Petitioner until she had hired a
lawyer for him. Petitioner was aware of trial counsel speaking with Ms. Love-Streeter
and Ms. Easley. However, Ms. Love-Streeter claimed that she called trial counsel every
day, and none of those calls were returned. She first spoke with trial counsel on the day
after Petitioner was arrested, and the next time that Ms. Love-Streeter spoke with trial
counsel was on the day of trial. Also, Ms. Easley recalled reaching out to trial counsel
“several times,” but she never spoke with him until Petitioner’s court date.

        Trial counsel advised Petitioner that if he testified at trial, he would be subject to
cross-examination by the State. As a result, trial counsel told Petitioner that his
testimony “wouldn’t be good.” However, Petitioner knew it was exclusively his decision
to testify or refrain from testifying.

       As a means of conveying Petitioner’s story to the jury, trial counsel believed
Petitioner’s statement was “better than anything else.” So, trial counsel made a strategic
decision to not object to its admission. At no point in all of trial counsel’s conversations
with Petitioner did Petitioner mention that he had been forced to talk to the police, and
according to trial counsel, if he “had thought, from [their] conversation that [Petitioner]
had been coerced to make that statement, [he] probably would have filed a motion to
suppress.” To trial counsel’s knowledge, there was no requirement that anyone be
present with a juvenile while making a statement to the police. Furthermore, Petitioner
had told trial counsel that his statement to the police was true. However, Petitioner
claimed he made trial counsel aware of his desire to challenge the admissibility of his
statement.

       Trial counsel brought on co-counsel, another Shelby County Assistant Public
Defender, to aid him during the trial. Co-counsel became second chair on the case just
before trial, and Petitioner first met co-counsel on the second day of his trial. As far as
co-counsel could recall, his involvement in the case did not include any pre-trial
investigation, motions filed with the trial court, or communication with the client. Co-
counsel described his job as taking notes and making missed objections at trial.

       On the weekend before Petitioner’s trial, co-counsel focused on the typewritten
statement that Petitioner gave to the police. Co-counsel noted that Petitioner did not
allege “improper pressure” or “intimidation” by the police. Co-counsel recalled that, on
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three different occasions, the police left Petitioner alone with Ms. Easley for a private
conversation prior to giving the statement. According to co-counsel, the police made it
clear that “all [Petitioner] had to do [was] just let them know that he didn’t [want to] talk
anymore and it’s over, no more talking.” However, Petitioner’s age at the time of the
statement — sixteen years old — “jumped out” at co-counsel.

      As co-counsel understood it, Petitioner’s statement essentially said that he did not
mean to hurt anyone, only to scare them. Co-counsel opined about the statement as
follows:

       [Petitioner] never in the statement said he was trying to kill anybody, or
       anything of that nature[,] and I knew the driver of the car and the passenger
       of the car . . . had testified at another one of his co-defendants trial earlier,
       so that he was going to be put at the scene. So his statement, in my opinion
       and in [trial counsel’s] opinion, . . . was helpful to [Petitioner], in that, he
       didn’t admit to any kind of intent to kill, or anything of that nature.

After forming that opinion of the statement, trial counsel and co-counsel decided a
motion to suppress would be frivolous.

       On the day of trial, Petitioner’s statement was read to the jury. Co-counsel
believed that “[Trial counsel] and I told [Petitioner] when it came down to decision time
[about] whether or not to testify, that the statement that had been read to the jury, we
thought was helpful to him and we didn’t think that it was a good idea that he try to
match wits with [the district attorneys general].” Co-counsel described the cross-
examination style of the district attorneys general as “aggressive.” Co-counsel
remembered trial counsel explaining the pros and cons of testifying to Petitioner. In co-
counsel’s opinion, there were no pros. However, neither trial counsel nor co-counsel
pressured Petitioner to not testify. According to co-counsel, Petitioner’s statement was in
line with their defense strategy and mitigated the need for Petitioner’s testimony.

      At trial, Petitioner’s statement was used against him. Ultimately, the jury
convicted Petitioner of two counts of first degree murder. Rapheal Love, 2008 WL
3892020, at *2. At a sentencing hearing, the trial court order Petitioner to serve
consecutive terms of life in prison. Id.

        Petitioner filed a petition for post-conviction relief. Eventually, the post-
conviction court held a hearing at which the aforementioned facts were adduced. In a
written order entered on June 26, 2017, the post-conviction court found that Petitioner
failed to prove that he was denied reasonably effective assistance of counsel and said “All
of Petitioner’s bases of relief, even if taken as true, would only amount to a questioning
of counsel’s trial strategy.” Furthermore, the post-conviction court found that “most if
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not all of Petitioner’s allegations are untrue” and went on to reiterate that the few
allegations which were true amounted to “a difference of opinion and second guessing of
trial strategy.” The post-conviction court held that Petitioner failed to prove that trial
counsel was deficient and failed to show any prejudice.

        Petitioner now appeals the judgment of the post-conviction court.1

                                               Analysis

        Petitioner argues that he received ineffective assistance of counsel because trial
counsel lacked proper preparation for trial, failed to properly investigate the matter prior
to setting a trial date, specifically Petitioner’s education and mental health, and made no
attempt to file a motion to suppress Petitioner’s statement. The State contends that
Petitioner’s arguments are without merit because trial counsel strategically decided not to
object to the admission of Petitioner’s statement and trial counsel did not need to further
investigate Petitioner’s mental health after Petitioner showed no sign of inability to
understand trial counsel and was determined to be competent to stand trial. We agree
with the State.

       Post-conviction relief is available for any conviction or sentence that 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. In order to
prevail in a claim for post-conviction relief, a petitioner must prove his or her factual
allegations by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18
S.W.3d 152, 156 (Tenn. 1999). “Evidence is clear and convincing when there is no
serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.” Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).

       Both the Sixth Amendment to the Constitution of the United States and article I,
section 9 of the Tennessee Constitution guarantee the right of an accused to the effective
assistance of counsel. See Davidson v. State, 453 S.W.3d 386, 392-93 (Tenn. 2014). In
order to sustain a claim of ineffective assistance of counsel, a petitioner must demonstrate
that counsel’s representation fell below the range of competence demanded of attorneys
in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under the two
prong test established by Strickland v. Washington, 466 U.S. 668, 687 (1984), a petitioner
must prove that counsel’s performance was deficient and that the deficiency prejudiced

        1
          We note that Petitioner untimely filed his notice of appeal on July 27, 2017. Because Tennessee
Rule of Appellate Procedure 4(a) provides that the notice of appeal document is “not jurisdictional” and
“may be waived in the interest of justice,” we may waive the timeliness requirement after considering
relevant factors such as the issues presented and the length of the delay. See State v. Rockwell, 280
S.W.3d 212, 214 (Tenn. Crim. App. 2007). Accordingly, we waive the timeliness requirement for the
notice of appeal and address Petitioner’s appeal on the merits.
                                                    -5-
the defense. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting
that the same standard for determining ineffective assistance of counsel applied in federal
cases also applies in Tennessee). Because a petitioner must establish both elements in
order to prevail on a claim of ineffective assistance of counsel, “failure to prove either
deficient performance or resulting prejudice provides a sufficient basis to deny relief on
the claim.” Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997). “Indeed, a court need
not address the components in any particular order or even address both if the [petitioner]
makes an insufficient showing of one component.” Goad v. State, 938 S.W.2d 363, 370
(Tenn. 1996) (citing Strickland, 466 U.S. at 697).

       The test for deficient performance is whether counsel’s acts or omissions fell
below an objective standard of reasonableness under prevailing professional norms.
Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must evaluate the
questionable conduct from the attorney’s perspective at the time, Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and “should indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance,” State v. Burns,
6 S.W.3d 453, 462 (Tenn. 1999). This Court will not use hindsight to second-guess a
reasonable trial strategy, even if a different procedure or strategy might have produced a
different result. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994);
Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). However, this
deference to the tactical decisions of trial counsel is dependent upon a showing that the
decisions were made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528
(Tenn. Crim. App. 1992).

        Even if a petitioner shows that counsel’s representation was deficient, the
petitioner must also satisfy the prejudice prong of the Strickland test in order to obtain
relief. The question is “whether counsel’s deficient performance renders the result of the
trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S.
364, 372 (1993). A petitioner must show that there is a reasonable probability “sufficient
to undermine confidence in the outcome” that, “but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Burns, 6 S.W.3d at 463 (quoting
Strickland, 466 U.S. at 694). “An error by counsel, even if professionally unreasonable,
does not warrant setting aside the judgment of a criminal proceeding if the error had no
effect on the judgment.” Id. (quoting Strickland, 466 U.S. at 691).

       Whether a petitioner has been denied the effective assistance of counsel presents a
mixed question of law and fact. Burns, 6 S.W.3d at 461. This Court will review the
post-conviction court’s findings of fact “under a de novo standard, accompanied with a
presumption that those findings are correct unless the preponderance of the evidence is
otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P.
13(d); Henley, 960 S.W.2d at 578). This Court will not re-weigh or re-evaluate the
evidence presented or substitute our own inferences for those drawn by the trial court. Id.
                                           -6-
at 456. Questions concerning witness credibility, the weight and value to be given to
testimony, and the factual issues raised by the evidence are to be resolved by the post-
conviction court. Id. However, the post-conviction court’s conclusions of law and
application of the law to the facts are reviewed under a purely de novo standard, with no
presumption of correctness. Id. at 458.

       First, we will address the investigation and preparation of trial counsel and co-
counsel. In this case, trial counsel had Petitioner undergo a mental evaluation to
determine if Petitioner was competent to stand trial. The results revealed that Petitioner
was competent. In the four to five in-person meetings between Petitioner and trial
counsel, trial counsel did not develop any suspicions of a mental defect or an inability to
communicate with Petitioner. Additionally, co-counsel noted no signs of an inability to
communicate with them. With no signs of impairment and a mental evaluation stating
Petitioner was competent to stand trial, we conclude that trial counsel and co-counsel
were not deficient and performed within the range of competence demanded of attorneys
in criminal cases when they proceeded to trial without further investigation into
Petitioner’s education or mental health.

        Next, we turn to Petitioner’s statement. Both trial counsel and co-counsel agreed
that Petitioner’s statement could be used to benefit Petitioner by conveying his side of the
story to the jury without risking the perils of cross-examination. Co-counsel even
testified that he spent the entire weekend before trial focused on the admissibility of
Petitioner’s statement. After determining that a motion to suppress Petitioner’s statement
would be “frivolous,” trial counsel and co-counsel decided not to object to its admission.
This is exactly the type of “reasonable trial strategy” that we will not second guess. Trial
counsel and co-counsel adequately considered the pros and cons of not objecting to
Petitioner’s statement and made a strategic or tactical decision not to object to its
admission. As such, we cannot conclude that trial counsel or co-counsel performed
deficiently, nor can we conclude that Petitioner received ineffective assistance of counsel.

                                        Conclusion

         For the aforementioned reasons, we affirm the judgment of the post-conviction
court.



                                             ____________________________________
                                             TIMOTHY L. EASTER, JUDGE




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