        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs March 26, 2013

           MITCHELL DARNELL EADS v. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Claiborne County
                    No. 2011-CR-1023     E. Shayne Sexton, Judge


                  No. E2012-02232-CCA-R3-PC - Filed June 17, 2013


The petitioner, Mitchell Darnell Eads, filed in the Claiborne County Criminal Court a petition
for post-conviction relief, alleging that his trial counsel was ineffective by failing to object
to the admission of certain evidence at trial and by erroneously stipulating at the sentencing
hearing that the petitioner was a career offender. After a hearing, the post-conviction court
denied the petition, and the petitioner currently appeals. Upon review, we affirm the
judgment of the post-conviction court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which T HOMAS T. W OODALL
and R OBERT W. W EDEMEYER, JJ., joined.

Clarence E. Pridemore, Jr., Knoxville, Tennessee, for the appellant, Mitchell Darnell Eads.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Lori Phillips-Jones, District Attorney General; and Jared Effler, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                          OPINION

        At trial, a Claiborne County Criminal Court Jury convicted the petitioner in case
number 12,019 of possession of contraband in a penal institution and felony escape. On
direct appeal, this court summarized the proof adduced at trial as follows:

                     On February 25, 2002, the [petitioner] was incarcerated
              on a felony charge at the Claiborne County Jail, located on the
              third floor of the Claiborne County Courthouse. At
              approximately 5:00 a.m., he forced Deputy Jailer Bryan
Ferguson at knifepoint to open the doors at the front of the jail,
began running down the stairwell, and was apprehended at the
foot of the stairs by deputies of the Claiborne County Sheriff’s
Department, whose office was located on the ground floor of the
building. . . .

       ....

         Officer Steven Hurley of the Claiborne County Sheriff’s
Department testified that he heard the main entrance door to the
jail open and shut, footsteps hurrying down the stairs, and
Officer Bryan Ferguson’s yelling something over the radio. He
said that he followed Officer Beck out the door of the sheriff’s
office, saw the [petitioner] “rounding the stairwell heading out
toward the gravel parking lot,” and grabbed and held him
against the stairwell. At about that time, Officer Ferguson, who
was “shaking head to toe” and “pale as a ghost,” came down the
stairs shaking a can of mace. Officer Hurley testified that the
officers recovered a “shank, . . . a metal hacksaw blade that had
been filed off to a point and . . . had something wrapped around
it for a handle,” that the [petitioner] dropped when apprehended.
He said that, after he and his fellow officers had handcuffed the
[petitioner] and escorted him to the holding cell, they inspected
the cell where the [petitioner] had been housed and discovered
that the door appeared to have been sawed.

        On cross-examination, Officer Hurley testified that both
the stair treads and the large metal door at the top of the stairs
were red and acknowledged that he knew of no other place in
the courthouse with red paint. He further acknowledged that the
[petitioner] never made it past the door to the sheriff’s office.
On redirect examination, he testified that the door that led to the
gravel parking lot outside the sheriff’s office was not a secure
door and remained unlocked.

       Officer Melvin Bayless of the Claiborne County Sheriff’s
Department testified that on February 25, 2002, he was in the
sheriff’s office with Officers Dennis Beck, Chris Bishop, and
Steven Hurley when he heard the big red entry door to the jail
open and shut, Officer Bryan Ferguson’s voice over the radio

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saying “Get him,” and footsteps running down the stairs. He
said he and his fellow officers went out the door and saw the
[petitioner], whom they knew should not be down there,
standing on the other side. He stated that Officers Beck and
Hurley pinned the [petitioner] against the steps while he went
“across the rail” to assist. As he did so, he saw the [petitioner’s]
weapon strike the brick wall and bounce down the steps. On
cross-examination, he acknowledged that the [petitioner] came
to a stop at sight of the officers.

       Officer Chris Bishop of the Cumberland Gap Police
Department, formerly a sergeant with the Claiborne County
Sheriff’s Department, testified that he and his fellow sheriff’s
department officers were in the office when they heard a noise,
went outside, and saw the [petitioner] coming down the steps.
He said that he yelled “weapon” as Officers Beck and Hurley
grabbed the [petitioner] because he saw that the [petitioner] had
a weapon in his left hand. The weapon was knocked to the
ground, and he then picked it up and secured it as evidence.
Officer Bishop identified the weapon, which he described as a
hacksaw blade that had been sharpened into a point at one end
and had a black trash bag braided into a handle on the other end.
On cross-examination, he testified that the general public
sometimes enters the courthouse through the door leading to the
gravel parking lot outside the sheriff’s office. He acknowledged
he could not recall seeing red paint anywhere else in the
courthouse other than in the workhouse and on the stairs leading
to the workhouse.

        Officer Missy Wright testified that she was a jailer with
the Claiborne County Sheriff’s Department and was working the
night shift with Bryan Ferguson on February 25, 2002. She said
that, at about 5:00 that morning, Ferguson went to awaken the
trustees while she remained in the office. Five to ten minutes
later, she heard keys at the kitchen door, glanced up, and saw
him coming through the kitchen with the [petitioner] at his side.
The next thing she knew, the [petitioner] had gone out the front
door and a visibly shaken Ferguson was running into the office
to get to the radio. On cross-examination, Wright acknowledged
that the door that led to the gravel parking lot was generally used

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only by the deputies or other individuals who were there “for
workhouse purposes,” and that the general public usually
accessed the sheriff’s department either through the main or side
entrances of the courthouse. On redirect examination, however,
she agreed that the general public was allowed to park in the
gravel parking lot and that the door that led to the gravel parking
lot remained unlocked.

        Bryan Ferguson testified that he was formerly employed
as a correctional officer with the Claiborne County Sheriff’s
Department but was discharged on August 8, 2002, for
fraternizing with an inmate. He said that at approximately 5:35
a.m. on February 25, 2002, he went to awaken the trustees in
cell two in the maximum unit. As he was walking past cell
three, the [petitioner], who was standing at the cell door, said,
“Open the red door.” He continued past but then caught a
glimpse of the cell door swinging open behind him and the
[petitioner] approaching with a sharp object in his hand. He said
that the [petitioner] placed the sharp object, a homemade knife,
to his chest and told him not to do anything stupid. The
[petitioner] then grabbed his right arm and pressed the knife to
his side. Believing that the [petitioner] would kill him if he did
not comply with his demands, Ferguson spent the next five to
ten minutes attempting to open the red door, which led to the
fire escape, but none of his keys fit the lock. He testified that
the [petitioner] became agitated when the door would not open
and ordered that he take him to the main entrance. The
[petitioner] then escorted him, knife pressed against his side, to
the front door of the jail, telling him as they passed his partner
that he better not say anything or he would regret it.

       Ferguson testified that he and the [petitioner] passed
through the blue maximum security hallway door, the white
bullpen hallway door, and the red wire mesh gate before finally
reaching the main entrance door. The first two doors were
unlocked, but he had to unlock the final two doors with his keys.
When he unlocked the front door, the [petitioner] let go of his
arm and “bolted out the door.” On cross-examination, Ferguson
agreed that he had become acquainted with some of the inmates
during his employment at the workhouse and had dated a female

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                  inmate who was serving a sentence on the weekends. He
                  denied, however, that he fraternized with the woman while she
                  was in the jail or ever gave anything to an inmate. He said that
                  the stair treads leading to the jail were red for safety reasons and
                  that he did not know whether red paint was used anywhere else
                  in the courthouse. Finally, in response to jury questions read by
                  the trial court, Ferguson testified that even though the jail was
                  located in the courthouse it was considered a separate facility
                  from the rest of the building, that the jail ended at the red
                  entrance door, and that the courthouse was responsible for the
                  stairs with the red paint.

                        The [petitioner] elected not to testify and rested his case
                  without presenting any proof.

State v. Mitchell Eads, No. E2006-02793-CCA-R3-CD, 2008 WL 2790434, at *1-4 (Tenn.
Crim. App. at Knoxville, July 21, 2008). The trial court sentenced the petitioner as a
persistent offender to fourteen years for the possession of contraband conviction and as a
career offender to six years for the felony escape conviction. Id. at *1. The court ordered
the sentences to be served consecutively to each other and to a prior, twenty-four-year
sentence, for a total effective sentence of forty-four years. Id. On direct appeal, this court
affirmed the appellant’s convictions but remanded for reconsideration of consecutive
sentencing. Id.

       On remand, the length of the petitioner’s sentences remained the same, but the court
ordered the sentences to be served concurrently with each other and consecutively to the prior
sentence. State v. Mitchell Eads, No. E2009-01574-CCA-R3-CD, 2010 WL 3862566, at *1
(Tenn. Crim. App. at Knoxville, Oct. 5, 2010). On appeal, this court affirmed the petitioner’s
sentences. Id.

        On March 8, 2011, the petitioner, acting pro se, filed a petition for post-conviction
relief. The court appointed the petitioner counsel, and, thereafter, two amended petitions for
post-conviction relief were filed. In the petitions, the petitioner complained that his trial
counsel was ineffective on numerous grounds.1 Notably, he first maintained that because a
major issue at trial was whether he “left the confines of the jail” during his escape, counsel
should have insisted that the State introduce “a certified blueprint of the jail” instead of the
uncertified diagrams of the jail that were introduced as exhibits at trial. Second, the
petitioner contended that during the sentencing hearing, counsel incorrectly stipulated that

       1
           All but the two grounds discussed herein were abandoned on appeal.

                                                   -5-
the petitioner was a career offender.

       At the post-conviction hearing, the petitioner’s trial counsel testified that he was
appointed to represent the petitioner in case number 12,019 and on three additional cases.
Counsel said that during discovery, he received an uncertified copy of the jail’s “fire escape
plan” but that he could not recall if he tried to find “any certified blueprints or any actual
architectural drawings” of the jail. The fire escape plan was consistent with the one counsel
had seen posted in several places throughout the jail.

        Counsel acknowledged that he did not object to the diagram of the jail admitted by the
State at trial. He knew that the State would be allowed to describe the scene of the crime and
would be able to use the diagram to demonstrate the scene. Counsel had been in the jail
many times and thought the diagram “was consistent with the layout of the confines of that
jail.” Counsel was aware that at trial a fact question would be raised regarding the
boundaries of the jail because the petitioner had been apprehended “at the bottom of the
stairs just outside the sheriff’s department’s doors.” Counsel said there were two ways to
exit the jail: by using the fire escape or by going up a stairwell to the main exit. Counsel
explained that “the main door in and out of that jail was red, and the only other place in that
[c]ourthouse that had red was the treads going up the stairs to that red door.” Counsel
introduced photographs of that corridor at trial which, in his opinion, demonstrated that the
petitioner had not completed his escape because he “never left the confines of that jail.”
Additionally, Officer Bishop testified at trial that the petitioner “never made it . . . out of the
jail.” However, counsel did not request that the trial court charge the jury on the lesser-
included offense of attempted escape because the petitioner decided that he did not want the
lesser-included offenses to be charged.

       Counsel said that after spending considerable time reviewing the petitioner’s prior
criminal convictions, counsel concluded the petitioner was a career offender. At the
sentencing hearing, counsel stipulated that the petitioner was a career offender on the felony
escape conviction. Counsel advised the petitioner of the potential sentences he faced and
encouraged the petitioner to accept one of the various plea offers made by the State.

        Counsel said that the petitioner never disputed that he was a career offender. Counsel
said that he “prepared a very comprehensive list of how to incorporate and include”
convictions for offenses which occurred within twenty-four hours of each other and that he
still concluded that the petitioner was a career offender. Counsel said that the petitioner had
a series of prior criminal convictions in case numbers “10,526[;] 11,022[;] 11,023 and a
plethora of more” that were used to classify the petitioner as a career offender. Counsel said
that he “still [thought] to this day he’s a career offender on that particular sentence at that
time.”

                                                -6-
       On cross-examination, trial counsel said that the State timely responded to his
discovery request and that he reviewed the discovery materials with the petitioner. Counsel
discussed trial strategy with the petitioner, investigated the case, and prepared for trial.
Counsel “did not know then and do[es] not know now” if there are any “architectural
drawings of the jail.” He maintained that the drawings admitted at trial were true and
accurate depictions of what they were purported to be and were admissible.

       Counsel was certain that the petitioner was a career offender as it related to his escape
conviction and a persistent offender as it related to his possession of contraband conviction.
He said that “taking the 24-hour rule in a light most favorable to [the petitioner], he would’ve
had at least eight prior felony convictions.”

       The petitioner testified that he thought trial counsel had been ineffective “in
[determining] my classification range as it pertains to sentencing.” The petitioner stated that
by his calculations, he had four prior convictions that could have been used to establish his
sentencing range, not the six convictions required to classify him as a career offender. He
said that prior to his sentencing hearing, he told counsel that he “thought it was too much
time.”

        On cross-examination, the petitioner acknowledged that trial counsel reviewed the
discovery materials with him. He did not deny having the convictions that the State had
compiled in a list included in the discovery materials. He also did not dispute the offense
dates listed for the convictions.

        At the conclusion of the hearing, the post-conviction court accredited the testimony
of trial counsel. The court found that counsel was not deficient nor was the petitioner
prejudiced by the actions of trial counsel. Therefore, the post-conviction court denied the
petition. On appeal, the petitioner contests this ruling.

                                         II. Analysis

       To be successful in a claim for post-conviction relief, a petitioner must prove the
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim.
App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).
Issues regarding the credibility of witnesses, the weight and value to be accorded their
testimony, and the factual questions raised by the evidence adduced at trial are to be resolved
by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579

                                              -7-
(Tenn. 1997). Therefore, the post-conviction court’s findings of fact are entitled to
substantial deference on appeal unless the evidence preponderates against those findings.
See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

       A claim of ineffective assistance of counsel is a mixed question of law and fact. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s
findings of fact de novo with a presumption that those findings are correct. See Fields, 40
S.W.3d at 458. However, we will review the post-conviction court’s conclusions of law
purely de novo. Id.

       When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, “the petitioner bears the burden of proving both that counsel’s performance was
deficient and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363,
369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish
deficient performance, the petitioner must show that counsel’s performance was below “the
range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). To establish prejudice, 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. Moreover,

                       [b]ecause a petitioner must establish both prongs of the
              test, a failure to prove either deficiency or prejudice provides a
              sufficient basis to deny relief on the ineffective assistance claim.
              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, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).

       On appeal, the petitioner contends that trial counsel was ineffective in two ways: (1)
counsel should have objected to the diagram of the jail because it was not certified and
should have insisted on certified blueprints, and (2) trial counsel incorrectly determined that
the petitioner was a career offender and stipulated his status at the sentencing hearing.

       Regarding the petitioner’s first complaint, we note that although the petitioner
contended that trial counsel should have objected to the diagram of the jail, he did not submit
the diagram or a certified blueprint at the post-conviction hearing to demonstrate any alleged
disparity. There is nothing in the record that indicates the uncertified drawings were
inaccurate. To the contrary, at trial Officer Hurley testified that the diagram was “a true and

                                              -8-
accurate depiction of the Claiborne County Jail as it appeared” on the day of the petitioner’s
escape. Further, trial counsel testified at the post-conviction hearing that he had been in the
jail many times and that the diagram “was consistent with the layout of the confines of that
jail.” See Tenn. R. Evid. 401, 901. The post-conviction court stated, “We don’t have to have
certified copies of everything as long as it gives the [j]ury an idea of what the jail would have
looked like at the time of the alleged escape.” The post-conviction court found that counsel
was not ineffective in this regard. There is no evidence in the record to preponderate against
the post-conviction court’s finding.

       Next, we turn to the petitioner’s second complaint, which is that trial counsel
erroneously stipulated that he was a career offender on the felony escape conviction. The
petitioner’s conviction for escape was a Class E felony. See Tenn. Code Ann. §
39-16-605(b)(2). At the time of the petitioner’s sentencing hearing, Tennessee Code
Annotated section 40-35-108(a)(3) provided that a defendant was a career offender when he
had “[a]t least six (6) prior felony convictions of any classification if the defendant’s
conviction offense is a Class D or E felony.” Further, Tennessee Code Annotated section 40-
35-108(b) provided that

              (1) “Prior conviction” means a conviction for an offense
              occurring prior to the commission of the offense for which the
              defendant is being sentenced

              ....

              (4) Except for convictions for which the statutory elements
              include serious bodily injury, bodily injury, threatened serious
              bodily injury, or threatened bodily injury to the victim or
              victims, convictions for multiple felonies committed within the
              same twenty-four-hour period constitute one (1) conviction for
              the purpose of determining prior convictions

       The petitioner argues that in State v. Blouvett, 904 S.W.2d 111, 113 (Tenn. 1995),
“the State Supreme Court ruled that multiple convictions resulting from a crime spree that
were adjudicated in a single proceeding could not be used to bump the sentencing range.” In
Blouvett,

              all of the charges . . . resulted from a crime spree which lasted
              approximately one month. All convictions, however, were
              adjudicated contemporaneously. The trial judge used the first
              “guilty plea” convictions to elevate the defendants’ status first

                                               -9-
              to “multiple,” then “persistent,” and then to “career” offender in
              subsequent “guilty plea” convictions—all without reference to
              any conviction other than those which had been reduced to
              judgment in the same proceeding.

904 S.W.2d at 112. Regarding the convictions that were adjudicated on the same day, our
supreme court concluded that the trial court erroneously enhanced the sentencing range for
one conviction from a crime spree based upon other convictions that stemmed from the same
crime spree. Id. The court explained “that ‘prior conviction’ means a conviction that has
been adjudicated prior to the commission of the more recent offense for which sentence is
to be imposed.” Id. at 113.

        At the post-conviction hearing, the petitioner agreed that the State provided a correct
list of his prior convictions during discovery. The list reflects that on December 11, 1998,
the petitioner was convicted of one Class E felony and four Class D felonies. On April 10,
1995, he was convicted of seven Class D felonies and two class C felonies. On December
7, 1994, he was convicted of six Class D felonies and three class E felonies. On November
11, 1994, he was convicted of one Class D felony. The petitioner asserts that based upon
Blouvett, the foregoing convictions equate to four prior convictions for the purposes of
determining whether he is a career offender because there were four, separate conviction
dates.

        However, the petitioner’s reliance on Blouvett is misplaced. The petitioner does not
complain that one or more of his instant convictions was used to enhance his range for
another of the instant convictions; instead, his complaint is about whether trial counsel
correctly calculated his sentencing range under Tennessee Code Annotated section 40-35-
108(b)(4), which is “commonly known as the twenty-four-hour merger rule.” State v.
Kenneth Edward Watts, No. E2010-00553-CCA-R3-CD, 2011 WL 5517000, at *6 (Tenn.
Crim. App. at Knoxville, Nov. 8, 2011), perm. to appeal denied, (Tenn. 2012). Trial counsel
testified that based upon the offense dates, not the conviction dates, the petitioner had eight
prior felony convictions, which classified him as a career offender on his conviction for
felony escape. The record supports counsel’s conclusion. We conclude that there is no
evidence to preponderate against the post-conviction court’s finding. Accordingly, we
conclude that the post-conviction court did not err by denying the petition for post-conviction
relief.




                                             -10-
                                   III. Conclusion

       In sum, we conclude that the petitioner failed to establish that his counsel was
ineffective. Accordingly, we affirm the judgment of the post-conviction court.


                                                _________________________________
                                                NORMA McGEE OGLE, JUDGE




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