                                                                                        08/28/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs August 21, 2019

               JAMES BOSTIC, JR. v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                      No. 2013-C-2607    Steve Dozier, Judge


                            No. M2018-01369-CCA-R3-PC


The petitioner, James Bostic, Jr., appeals the denial of his petition for post-conviction
relief, which petition challenged the revocation of the community corrections placement
for his 2014 guilty-pleaded conviction of the sale of cocaine. In this appeal, the
petitioner claims entitlement to post-conviction relief on grounds that he was deprived of
the effective assistance of counsel at the community corrections revocation hearing.
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 JOHN
EVERETT WILLIAMS, P.J., and ROBERT H. MONTGOMERY, JR., J., joined.

Eugenia R. Grayer, Madison, Tennessee, for the appellant, James Bostic, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Kim R. Helper, District Attorney General; and J. Wesley King,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

               The Davidson County Grand Jury charged the petitioner with one count of
the sale of .5 grams or more of cocaine in a drug free school zone, one count of evidence
tampering, one count of simple possession, and one count of resisting arrest. Pursuant to
a plea agreement with the State, the petitioner pleaded guilty to the lesser included
offense of the sale of less than .5 grams of cocaine in exchange for a Range III sentence
of 12 years to be served in a community corrections placement and dismissal of the
remaining charges. A community corrections violation warrant issued in October 2016,
and, following a hearing, the trial court revoked the petitioner’s community corrections
placement on October 26, 2016, and ordered that he serve the balance of his 12-year
sentence in confinement. See James Edward Bostic, Jr. v. State, No. M2017-00087-
CCA-R3-PC, slip op. at 1 (Tenn. Crim. App., Nashville, Aug. 9, 2017). On December
12, 2016, the petitioner filed a petition for post-conviction relief, arguing that he had been
deprived of the effective assistance of counsel at the revocation hearing. The post-
conviction court summarily dismissed the petition as untimely, and the petitioner
appealed. On appeal, this court determined that the post-conviction court erred by
dismissing the petition as untimely because the claims in the petition related to the
October 2016 revocation hearing and remanded the case for further proceedings. See id.,
slip op. at 2.

               Upon remand, the post-conviction court appointed counsel, and the
petitioner filed an amended petition for post-conviction relief, alleging that the attorney
who represented him at the revocation hearing performed deficiently by failing to “be
aware of (through experience, training or research) the law applicable to [the petitioner’s]
case”; by failing “to investigate all means of drug and mental health treatment available
to” the petitioner; by failing “to properly investigate relevant issues” in the case; failing
to interview, investigate, and call witnesses “who may have aided in the mitigation of his
sentencing”; and by failing to interview and investigate the State’s witnesses. The
petitioner asked that he be granted a new hearing on the merits of the community
corrections revocation warrant.

              At the May 2018 evidentiary hearing, counsel testified that he was
appointed to represent the petitioner at the community corrections revocation proceeding
on October 26, 2016, the same day as the scheduled hearing. Counsel testified that he
spoke with the petitioner for approximately 45 minutes “on and off” and that he spent an
hour and a half to two hours on the case. Counsel recalled that the “first thing” the
petitioner “wanted to do was put his sentence into effect.” Counsel said that he asked the
petitioner to “at least give [counsel] the opportunity to talk to the DA, . . . talk to
probation, investigate the violation a little bit.” The petitioner acquiesced, so counsel
spoke “with probation” and learned that the petitioner “had already completed” the
available mental health and drug treatment programs “and that was not an option.”
Counsel said that “that was as far as it got with trying to figure out what could be done”
because the assistant district attorney “wasn’t making any offer other than to concede or
have the hearing.” Counsel relayed this information to the petitioner and asked the
petitioner to “at least give [counsel] an opportunity to reset it to have a hearing.” The
petitioner adamantly refused, “and it was his decision to go ahead and put his sentence
into effect.”

               Counsel testified that the petitioner did not tell him about any specific
mental health issues and did not tell him anything about having developmental
disabilities, saying, “[A]t no time during that discussion did he make me aware of any
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kind of developmental disability other than mental health issues, which could span the
gamut . . . .” The petitioner did tell counsel “that he was on his meds.” He said that the
petitioner did not appear frustrated and was instead “very calm about the situation.” He
recalled that they “had a good conversation, a good back and forth.” Counsel testified
that he had previously represented other individuals with a variety of mental health issues
and that the petitioner “seemed like he was fine.” Counsel said that the petitioner’s desire
to have his sentence put into effect did not seem strange, explaining, “I guess if any client
has a significant number of jail credits they may want to go ahead and put the sentence
into effect.” Counsel reiterated, however, that he “kept trying to talk [the petitioner] out
of going ahead and putting the sentence into effect that day” so as to allow counsel “to
investigate his case a little more and get a new date before going any further,” but the
petitioner instructed him “to forgo that option.”

              Counsel spoke to the petitioner’s probation officer, who told him about “the
mental health program and the drug program that he had already completed.” Counsel
said that, “because we never got to the point of going into a hearing,” he did not get an
opportunity “to investigate any options other than the fact that [the petitioner] had already
completed mental health court and drug court.” He said that it was possible that, had he
been allowed to spend more time with the petitioner, the result of the proceeding might
have been different.

              During cross-examination, counsel reiterated that he asked the petitioner to
let him “continue the case because he wasn’t going to get any worse” result following a
continuance, but the petitioner “instructed [counsel] to put his sentence into effect.”
Counsel said that he had several conversations with the prosecutor in which he attempted
to get the prosecutor to agree to “split confinement or anything that would allow [the
petitioner] to serve less than 12 years in prison,” but the prosecutor would not agree.
Counsel said that nothing in the petitioner’s behavior, including his asking to have his
sentence placed into effect, led counsel to believe that he needed to ask the court for a
forensic evaluation. He added during redirect examination, “Given the fact that he was
on his medication[] and given the fact that we were having a very open conversation, I
didn’t think anything odd about him wanting to put his sentence into effect. It seemed
like he was informed.”

               Counsel said that the petitioner did not tell him that he was being
mistreated at the jail or that he had a history of having been abused. Counsel did not ask
the petitioner what medication he was taking at the time of the hearing.

             The petitioner testified that he had been deprived of his medications from
the time he was taken into custody to the day of his revocation hearing. He said that,
without his medication, he suffered from anxiety, hallucinations, paranoia, and delusions.
                                             -3-
The petitioner said that he had been diagnosed with autism, schizophrenia, mental
retardation, anxiety disorder, “paranoid current illness,” schizoaffective disorder, “[a]nd
the list goes on.” The petitioner added that he also suffered from substance abuse issues
and admitted that he was using drugs when his community corrections placement was
revoked in October 2016. He said that, because of his disabilities, he “was picked on all
of my life and picked with. And I’m still getting picked with now. Even just today I was
picked on.” He insisted that he had been mistreated throughout his incarceration.

               The petitioner said that after a relapse into drug use, he contacted his
community corrections officer, who “told for me to go into inpatient treatment.” He said
that he contacted “Park Center” and was informed in July 2016 that “it was okay for me
to come to their program upon release.” He exhibited to his testimony a letter from “Park
Center” informing him that he had been approved for the Co-Occurring Outpatient
Program and that he should contact the intake coordinator “[u]pon release.” The
petitioner said that he “had that letter along with other records from different center[s] as
well as halfway houses” where he had been accepted. He said that he had been trying to
get into a treatment program before the revocation hearing.

               The petitioner denied telling counsel that he wanted his sentence put into
effect. He said that he only agreed to the revocation because he “felt like I didn’t have
any help, support or choice.” The petitioner acknowledged that counsel spoke with the
prosecutor and then told him that the prosecutor would not agree to anything other than
the petitioner’s serving the remainder of his sentence in confinement. He claimed that,
after that, counsel said “that he was not my lawyer,” saying, “[Counsel] came back out
the last time and he said James, I’m not your lawyer. I’m not appointed to your case.
You have another lawyer who is assigned to your case . . . .” He said that counsel gave
him the name of another attorney who was allegedly assigned to the case and that that
attorney “couldn’t possibly be the lawyer” because he had not represented the petitioner
and because the attorney “was under a BPR investigation for a conflict that we were
having regarding my postconviction previously . . . where I was trying to come back and
get relief on the original charges regarding that case number.”

              The petitioner also claimed that, on the day of the hearing, he “was also
hearing voices a little bit” but did not alert the court to his issues because “there was
nothing that [the judge] would listen to at that point.” The petitioner said that counsel
“made me feel very comfortable . . . in the beginning.” He recalled counsel’s frustration,
saying, “[Y]ou know, he don’t know what else to do and he can only, you know, try to
get me here or get me there. And I felt that that was not something I wanted to -- that I
thought was -- needed to be done.” Instead, the petitioner wanted to “release information
about what had happened before my arrest and after my arrest” because it “was damning

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and important.” The petitioner could not recall whether he had told counsel that he was
taking his medication.

              The petitioner maintained that he had sought post-conviction relief from the
community corrections revocation “to try to hopefully get relief so that . . . you all can
hopefully see that . . . I really am going to try to help myself this time and I don’t want to
go through what I’m going through because it’s too much on me.” He said that he was
“going through a die-hard situation medically and mental-health wise” and that both his
physical and mental health were suffering due to the level of care he was receiving in
prison. The petitioner exhibited to his testimony letters from various treatment programs
indicating that he had been accepted “upon my release.”

             During cross-examination by the State, the petitioner agreed that he had
previously been convicted of eight felonies, including two aggravated burglaries, two
attempted aggravated burglaries, and a burglary.

               Dawn Harper, a case officer with Davidson County Community
Corrections, testified that she supervised the petitioner for “part of 2015 all of the way to
2016.” She did not “have any official records” but recalled that the petitioner “does have
some records somewhere with some developmental [disabilities] listed.” She said that
the petitioner told her that he had schizoaffective disorder and that she was aware of his
substance abuse. Ms. Harper recalled that she had referred the petitioner to Park Center
and that “he only made it to one appointment.” She said that the petitioner had
previously been placed in Bill’s Halfway House, Ann Betts’ House, and Transitions. Ms.
Harper said that her last communication with the petitioner occurred “[a]bout six or seven
months ago” in the form of “a jail call and he was upset . . . I guess he had an upcoming
court date or something and he was supposed to do RDAP. He was a little upset about
it.” She testified that, during that call, the petitioner told her that jail officials had refused
to give him his medication and that she had encouraged him “to follow the correct path”
to obtain his medication. She added, “So at that point, I do not believe he was medically
compliant.”

               At the conclusion of the hearing, the post-conviction court took the matter
under advisement. In its written order denying relief, the post-conviction court found that
counsel “did not investigate the [p]etitioner’s case in detail” but concluded that counsel’s
“lack of investigation in this case was the direct result of his fulfillment of the
[p]etitioner’s expressed desires.” The court “recognize[d] that the [p]etitioner may now
regret his decision to place his sentence into effect.” The court accredited counsel’s
testimony “that he tried to persuade the [p]etitioner to continue the case to allow him time
to prepare for a hearing or develop some sort of potential release plan.” The court

                                               -5-
determined that counsel did not perform deficiently by expressly complying with the
petitioner’s desire to have his sentence placed into effect.

              In this appeal, the petitioner reiterates his claim of ineffective assistance of
counsel, claiming that his counsel performed deficiently by failing to spend sufficient
time investigating the case and, as a result, failed to discover issues related to the
petitioner’s mental health issues and developmental disabilities. He argues that, had trial
counsel performed an adequate investigation, counsel would have learned that the
petitioner had been accepted to a variety of treatment programs.

              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.” 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.
                                             -6-
State, 454 S.W.3d 450, 458 (Tenn. 2015) (citation omitted), 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’s accredited testimony established that the petitioner adamantly
opposed a continuance in the case and insisted that his sentence be placed into effect.
The evidence also established that counsel did not observe any behavior that suggested
that the petitioner was suffering from mental health or developmental disabilities at the
time of the hearing. Moreover, the petitioner did not actually tell counsel about his
issues. Counsel cannot be deemed deficient for failing to investigate these issues when
the petitioner never brought them to counsel’s attention. Contrary to the petitioner’s
assertion, counsel’s duty to investigate these issues was entirely dependent upon the
petitioner’s divulging them to his counsel. Although counsel admitted that he only spent
a short time on the petitioner’s case, he testified that he advised the petitioner to allow
him to ask for a continuance so that he could have more time to investigate. The
petitioner refused. It is unclear how counsel was supposed to find out about the
petitioner’s various issues as well as investigate treatment programs when the petitioner
adamantly refused to continue the case. Given that the petitioner failed to disclose any
mental health issues and that nothing in his behavior on the day of the hearing suggested
that he was not competent to make his own decisions, trial counsel was required to
facilitate the petitioner’s request that his sentence be placed into effect. The petitioner
may not now be heard to complain because counsel did exactly as he asked.

              Moreover, no evidence suggested that, had counsel conducted a further
investigation, the result of the proceeding would have been different. The petitioner
acknowledged that he was using drugs in October 2016 in violation of his community
corrections placement and did not at any point suggest that he had not, in fact, violated
the terms of his community corrections placement. Instead, the petitioner complained
about the circumstances of his incarceration and expressed a desire to be released into a
treatment program in lieu of incarceration. Under these circumstances, the trial court did
not err by denying post-conviction relief.

             Based upon the foregoing analysis, we affirm the judgment of the post-
conviction court.



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       _________________________________
      JAMES CURWOOD WITT, JR., JUDGE




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