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        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs November 16, 2016

              DONNIE DAVENPORT v. STATE OF TENNESSEE

              Appeal from the Criminal Court for Cumberland County
                      No. 12-0320 David A. Patterson, Judge


                              No. E2016-00760-CCA-R3-PC


The Petitioner, Donnie Davenport, appeals from the Cumberland County Criminal
Court’s denial of his petition for post-conviction relief from his jury trial conviction of
promotion of the manufacture of methamphetamine, for which he is serving a twelve-
year, Range III sentence. He contends that the post-conviction court erred in denying his
claim, which is premised upon ineffective assistance of counsel allegations. We affirm
the judgment of the post-conviction court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and TIMOTHY L. EASTER, JJ., joined.

Jeffrey A. Vires, Crossville, Tennessee, for the appellant, Donnie Davenport.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel;
Bryant C. Dunaway, District Attorney General; Amanda Worley, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

        The Petitioner raised three allegations of ineffective assistance of counsel that are
pertinent to this appeal: (1) failure to meet with the Petitioner to formulate a defense
before the trial, (2) failure to file a motion to suppress evidence, and (3) failure to advise
the Petitioner that he could be impeached with his prior convictions if he testified at the
trial. In the conviction proceedings, trial counsel did not file a motion for a new trial or a
notice of appeal. The Petitioner eventually filed a petition for post-conviction relief and a
motion for a delayed appeal. The trial court granted the motion for a delayed appeal and
stayed the post-conviction action until the delayed appeal was resolved. This court
denied relief on the merits of the Petitioner’s delayed appeal of the conviction. State v.
Donnie Dewayne Davenport, No. E2014-02545-CCA-R3-CD, 2015 WL 5925118, at *1,
3 (Tenn. Crim. App. Oct. 12, 2015).

       At the post-conviction hearing, the Petitioner testified that trial counsel visited him
once at the jail before the trial and that the meeting lasted about fifteen minutes. He said
he met with counsel once outside the courtroom for about ten to fifteen minutes. The
Petitioner stated that these were his only pretrial meetings with counsel. The Petitioner
said counsel told him that he “had better take this charge, better do this and that.” The
Petitioner said, “Mostly he just threatened me with what they had offered me, told me I
had better take it.” The Petitioner said the offer was for six years as a Range II offender,
and he acknowledged that he knew he could receive a greater sentence if he were
convicted at a trial. The Petitioner said he told counsel that he would not accept the plea
offer because he was not guilty.

        Relative to filing a motion to suppress, the Petitioner testified that he asked trial
counsel “a bunch of stuff” that the Petitioner could not remember. He said counsel acted
as if he could not or would not file a suppression motion.

        The Petitioner testified that although he brought things to trial counsel’s attention
during the trial, counsel did not mention them in the proceedings. The Petitioner said he
asked counsel if the State had tested a bottle that was recovered. The Petitioner said that
the State’s theory was that he had used the bottle to manufacture methamphetamine but
that he had actually used it to hold gasoline, which he used to burn debris. The Petitioner
said counsel did not take any action on his inquiry about having it tested. He said he had
wanted counsel to ask the jury if they had the same items at their homes, such as turkey
basters and ice packs, which the State alleged were components the Petitioner used to
manufacture methamphetamine. The Petitioner complained that counsel just sat and
looked at a piece of paper and did not speak up during the trial. He acknowledged,
though, that counsel had cross-examined a law enforcement officer about whether some
of the items the police recovered were commonly used to make methamphetamine.

       When shown a petition for trial counsel’s attorney’s fees, the Petitioner stated that
he had spoken with counsel for two or three minutes at the courthouse and that the only
time counsel spent any length of time with him was in their one meeting at the jail.
When asked about a statement in his pro se and his amended petitions that said counsel
did not talk to the Petitioner until the day of the trial, however, the Petitioner testified that
counsel had not talked to him until the day of the trial, notwithstanding his previous
testimony about the jail meeting and brief courthouse discussions. He later said that
counsel had not talked to him “like he should have . . . about the trial” and instead had
talked about the plea offer.

       The Petitioner testified that he did not own the property where he encountered
police officers. He said he had lived in a tent in the woods after being released from


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incarceration and that after a year, he bought a camper and moved to the property in
question. He said a person, whom he did not identify, had given him permission to stay
there in exchange for cleaning the property after a trailer fire. He said he cleaned the
property and placed debris in a burn pile. He said that the property was undeveloped and
that the only structure was a small barn.

       The Petitioner testified that when law enforcement officers came to the property,
they “snuck up behind” him when he was getting gasoline out of the outbuilding to mow
the yard. He said they asked him to open the outbuilding because they had received a
report that he had stolen property. He said he told the officers he would not unlock the
building without a warrant. He said that he was taken into custody and that the officers
did not recover any stolen property.

        The Petitioner testified that his prior convictions were mentioned at the trial.
When asked if he had “approximately eleven prior felony convictions,” he responded, “I
guess.” He acknowledged an aggravated burglary conviction but said he had not been
guilty and had pleaded guilty in order to avoid convictions for driving under the
influence. He acknowledged that it had been his decision to testify. He said that he had
not known that he could be impeached with his prior convictions if he testified and that
trial counsel never told him this.

       The Petitioner acknowledged a letter from trial counsel urging the Petitioner to
accept the plea offer, and the letter was received as an exhibit. The Petitioner agreed that
he had received the letter. He agreed that the letter stated a sentence for an offense could
be enhanced with his eleven prior felony convictions. He agreed the letter stated that
after counsel and the Petitioner had reviewed the charges, the Petitioner had rejected the
plea offer in favor of a trial. He agreed that the letter stated counsel’s advice was not to
proceed to a trial. The Petitioner agreed that he made the decision to go to trial. He said
he had a ninth-grade education and could not read well. He said he had not read the letter
from counsel but acknowledged he had someone read it to him. He acknowledged he
never told counsel he could not read well.

       The Petitioner testified that he did not recall the trial judge’s talking to him outside
the presence of the jury before the Petitioner testified. He did not recall responding
positively when the judge asked if the Petitioner made the decision to testify after
consulting with his attorney. He did not recall responding affirmatively when asked by
the judge if he understood that by testifying, he would be subject to cross-examination.
He likewise did not recall responding positively when the judge asked if the Petitioner
understood that cross-examination might include matters about the prior convictions.
The Petitioner did not recall signing paperwork relative to his decision to testify.

       Trial counsel identified his fee claim petition, which was received as an exhibit
and reflected four pretrial conferences between counsel and the Petitioner, a conference

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on the day the trial began, and additional court appearances. Counsel agreed that the
form reflected multiple meetings on multiple dates between himself and the Petitioner.
Counsel said that he reviewed the plea offer in detail with the Petitioner. Counsel said he
told the Petitioner that the State’s case could only be countered by the Petitioner’s
testifying but that the Petitioner would not be a credible witness due to his eleven prior
felony convictions. Counsel said the Petitioner wanted to testify and made the decision
to do so. Counsel said he had believed the Petitioner was not guilty because the
Petitioner was “penniless” and showed no signs of methamphetamine use. Counsel said
he believed the Petitioner’s claim of having found a cooler on the side of the road and
hanging it in the outbuilding. Counsel said he made these arguments to the jury. Counsel
denied that he failed to visit the Petitioner after saying he would do so.

       Trial counsel testified that he sent the Petitioner the letter that was previously
received as an exhibit. He agreed that he advised the Petitioner in the letter to accept the
plea offer. Counsel agreed that before the Petitioner testified, the Petitioner was advised
of his rights relative to testifying or not testifying in accord with Momon v. State, 18
S.W.3d 152 (Tenn. 1999).

       Trial counsel testified that he did not file a motion to suppress the evidence
recovered as a result of the search of the outbuilding. He concluded after reading the
relevant documents that reasonable grounds existed for the warrant. He agreed that the
State’s evidence consisted solely of the items recovered in the search and that if the
evidence had been suppressed, no basis would have existed to support a conviction.

       The post-conviction court found that the Petitioner was not a credible witness and
credited the testimony of trial counsel. The court noted, as well, the documentary
evidence that supported counsel’s testimony. The court found that the Petitioner had not
established by clear and convincing evidence that counsel’s performance was deficient
and that the Petitioner had been prejudiced. The court denied post-conviction relief. This
appeal followed.

       Post-conviction relief is available “when the conviction or sentence is void or
voidable because of the abridgement of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103 (2012). A
petitioner has the burden of proving his factual allegations by clear and convincing
evidence. Id. § 40-30-110(f) (2012). A post-conviction court’s findings of fact are
binding on appeal, and this court must defer to them “unless the evidence in the record
preponderates against those findings.” Henley v. State, 960 S.W.2d 572, 578 (Tenn.
1997); see Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction
court’s application of law to its factual findings is subject to a de novo standard of review
without a presumption of correctness. Fields, 40 S.W.3d at 457-58.




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       To establish a post-conviction claim of the ineffective assistance of counsel in
violation of the Sixth Amendment, a petitioner has the burden of proving that (1)
counsel’s performance was deficient and (2) the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell,
506 U.S. 364, 368-72 (1993). The Tennessee Supreme Court has applied the Strickland
standard to an accused’s right to counsel under article I, section 9 of the Tennessee
Constitution. See State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

       A petitioner must satisfy both prongs of the Strickland test in order to prevail in an
ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). To establish the
performance prong, a petitioner must show that “the advice given, or the services
rendered . . . , are [not] within the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466 U.S. at
690. The post-conviction court must determine if these acts or omissions, viewed in light
of all of the circumstances, fell “outside the wide range of professionally competent
assistance.” Strickland, 466 U.S. at 690. A petitioner “is not entitled to the benefit of
hindsight, may not second-guess a reasonably based trial strategy by his counsel, and
cannot criticize a sound, but unsuccessful, tactical decision.” Adkins v. State, 911 S.W.2d
334, 347 (Tenn. Crim. App. 1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn.
2008). This deference, however, only applies “if the choices are informed . . . based upon
adequate preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
To establish the prejudice prong, a 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.” Strickland, 466 U.S. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.

       Relative to the Petitioner’s claim that trial counsel provided ineffective assistance
of counsel by failing to meet with him before the trial in order to formulate a defense, the
evidence does not preponderate against the post-conviction court’s determination that the
Petitioner was not a credible witness. See Henley, 960 S.W.2d at 578; Fields, 40 S.W.3d
at 456-57. The Petitioner testified about two pretrial meetings with trial counsel, but the
Petitioner’s testimony was at odds with that of counsel, who stated that he reviewed the
case in detail with the Petitioner on at least four occasions. The letter counsel wrote to
the Petitioner stated that they had “reviewed the charges at length,” and the fee claim
petition reflects four pretrial conferences between counsel and the Petitioner, a
conference on the day the trial began, and additional court appearances. The Petitioner is
not entitled to relief on this basis.

        Regarding the Petitioner’s claim that trial counsel failed to file a motion to
suppress evidence of the search, the post-conviction court determined that the Petitioner
failed to prove his claim. Counsel testified that he reviewed the relevant documents and

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determined that no legal basis existed to challenge the search warrant. The court
observed in its comments at the conclusion of the hearing that the Petitioner failed to
show that he would have prevailed on a motion to suppress if counsel had filed the
motion. The court did not err in denying relief on this basis.

        Finally, with regard to the Petitioner’s claim that trial counsel failed to advise the
Petitioner that he could be impeached with his prior convictions if he testified at the trial,
the evidence does not preponderate against the post-conviction court’s adverse credibility
determination regarding the Petitioner. The Petitioner testified that counsel did not
explain impeachment with prior convictions, but counsel testified that he did. Counsel’s
testimony was corroborated by the letter received as an exhibit, in which, counsel stated,
“[I]t is my belief that the testimony you offer in defense will not be sufficient to
overcome the testimony offered by the [State] and that because of your extensive
criminal history the credibility of your testimony will be very questionable.” The
Petitioner is not entitled to relief on this basis.

       In consideration of the foregoing and the record as a whole, the judgment of the
post-conviction court is affirmed.

                                             _____________________________________
                                              ROBERT H. MONTGOMERY, JR., JUDGE




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