        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs December 7, 2011

       ROBERT DONTERIOUS CONNER v. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Davidson County
                       No. 2004-D-3081 Steve Dozier, Judge




                   No. M2011-00254-CCA-R3-PC - Filed July 12, 2012


Petitioner, Robert D. Conner, appeals the post-conviction court’s dismissal of his petition for
post-conviction relief following an evidentiary hearing. Petitioner attacks his convictions for
second degree murder and aggravated assault following a jury trial in which he was charged
with first degree murder and aggravated assault. The sole ground for relief argued on appeal
is that Petitioner was denied effective assistance of counsel because trial counsel failed to file
a written motion pre-trial for the severance of offenses, since the charges involved two
different victims and occurred on different days. After a thorough review of the parties’
briefs and the record, we affirm the judgment of the post-conviction court pursuant to Rule
20 of the Rules of the Court of Criminal Appeals of Tennessee.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Davidson County Criminal
  Court Affirmed Pursuant to Rule 20 of the Tennessee Court of Criminal Appeals

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which R OBERT W.
W EDEMEYER and D. K ELLY T HOMAS, J R., JJ., joined.

Ryan C. Caldwell, Nashville, Tennessee, for appellant, Robert Donterious Conner.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Rachel
Sobrero, Assistant District Attorney General, for the appellee, State of Tennessee.

                                MEMORANDUM OPINION

       The facts underlying the convictions can be found in this Court’s opinion in the direct
appeal, State v. Robert Donterious Conner, No. M2007-01619-CCA-R3-CD, 2008 WL
4614449 (Tenn. Crim. App. Oct. 17, 2008) perm. app. denied (Tenn., July 27, 2009).
Petitioner testified at the evidentiary hearing, and no further proof was offered in support of
his petition for post-conviction relief. The only witness called to testify by the State was
Petitioner’s trial counsel. Subsequent to the evidentiary hearing, the post-conviction court
entered an order denying relief, which set forth findings of fact and conclusions of law. As
to the one ground for relief argued on appeal, the post-conviction court’s order states as
follows:

               Finally, the petitioner argues that trial counsel failed to file a Motion
        to Sever the Offenses of Count 1 (First Degree Murder) and Count 3
        (Aggravated Assault). While the Court acknowledges that there may be
        some issue as to whether a severance of the aforementioned counts would
        have been appropriate if raised, the petitioner has not demonstrated actual
        prejudice to the defense by clear and convincing evidence. Under Tenn. R.
        Evid. 404(b)(2),statements made by the victim of Count 1 that dealt with the
        petitioner’s involvement in [ ] the charged Aggravated Assault (Count 3)
        would have been admissible to establish the motive and identity of
        petitioner in Count 1. Thus, the Court finds that the [petitioner] has not
        shown a reasonable probability that the result of the proceeding would have
        been different if a severance had been granted. The Court finds that the
        petitioner has failed to prove this allegation by clear and convincing
        evidence.

       No proof was presented at the post-conviction hearing to show that a motion to sever
would have been granted had a written motion to sever been filed by trial counsel. Petitioner
did not testify about the severance issue during his direct examination at the post-conviction
hearing. The only testimony by Petitioner regarding the severance issue was during cross-
examination by the Assistant District Attorney General. The following transpired:

       [Assistant District Attorney]:       Okay – the other reason you’re asking for
                                            a new trial today is because you say your
                                            lawyer, [trial counsel], didn’t file a motion
                                            to sever; is that right?

       [Petitioner]:                        Yes, ma’am.

       [Assistant District Attorney]:       Do you know what that means?

       [Petitioner]:                        No, ma’am.




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       [Assistant District Attorney]:      So you didn’t really want him to do that if
                                           you don’t know what that is, right?

       [Petitioner]:                       I got somebody helping me on my case.

        Concerning the severance issue trial counsel testified that he believed he presented
an oral motion for a severance of offenses for trial, but the request was denied. No testimony
was elicited from trial counsel which could show the basis for a motion to sever offenses.
Notwithstanding the fact that the post-conviction court mentioned in its order that “there may
be some issue as to whether a severance” would have been appropriate, it would be pure
speculation for this Court to conclude from the record of the post-conviction proceedings that
either (1) trial counsel was deficient by not filing a motion to sever offenses or (2) that
prejudice resulted to Petitioner because the severance motion was not filed.

         A petitioner in a post-conviction proceeding bears the burden of proving factual
allegations (in this case that a motion for severance of offenses would have been meritorious
if filed by trial counsel) by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f).
Petitioner’s proof at the post-conviction hearing fell far short of the “clear and convincing”
standard. Petitioner is not entitled to relief in this appeal.

                                        CONCLUSION

       The judgment of the trial court was in a proceeding without a jury, it was not a
determination of guilt, the evidence does not preponderate against the finding of the trial
court, and no error of law requiring a reversal of the judgment is apparent on the record.
Accordingly, the judgment of the trial court is affirmed by memorandum opinion pursuant
to Rule 20 of the Rules of the Court of Criminal Appeals of Tennessee.


                                           _________________________________________
                                           THOMAS T. WOODALL, JUDGE




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