                                                                                          08/14/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs August 7, 2018

                DAETRUS PILATE v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                   No. 11-05220, 12-01054 Lee V. Coffee, Judge
                     ___________________________________

                           No. W2017-02060-CCA-R3-PC
                       ___________________________________


Petitioner, Daetrus Pilate, filed a pro se petition for post-conviction relief claiming that
his confession was coerced and that he received the ineffective assistance of counsel in
Case No. 11-05220. After appointment of counsel, an amended petition was filed
claiming that Petitioner received ineffective assistance of counsel in Case No. 11-05220
and in Case No. 12-01054. Following a hearing, the post-conviction court denied relief.
After a thorough review of the record, we affirm.

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


ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and ROBERT W. WEDEMEYER, JJ., joined.

Ernest J. Beasley, Memphis, Tennessee, for the appellant, Daetrus Pilate.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Kevin McAlpin,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                        OPINION

                                   Procedural History

       Petitioner was convicted in Case No. 12-01054 (“the assault case”) of aggravated
assault by use of a deadly weapon and evading arrest in a motor vehicle creating a high
risk of death or injury. Several Shelby County Sheriff Department Officers were
attempting to arrest Petitioner after he was indicted in Case No. 11-05220. They located
Petitioner and his eighteen-year-old son in Petitioner’s jeep in the car waiting line of a
school. When Petitioner made eye contact with the officers, he exited the car line and
attempted to flee. After a high speed pursuit, Petitioner turned onto the street where he
lived and pulled into his driveway. Officers ordered Petitioner to turn off the engine and
exit the vehicle. Instead, Petitioner gunned his vehicle striking Detective Shaw on his
right side and running over his foot and ankle. Detective Shaw fired three shots at
Petitioner’s vehicle. One round struck Petitioner who stopped at the end of his street and
was apprehended. The trial court sentenced him to a total effective sentence of nine
years’ incarceration, and the convictions and sentences were affirmed on appeal. State v.
Daetrus Pilate, No. W2014-01593-CCA-R3-CD, 2015 WL 5173096, at *1 (Tenn. Crim.
App. Aug. 31, 2015), no perm. app. filed.

       In Case No. 11-05220 (“the rape case”), Petitioner was convicted of rape of a
child, aggravated sexual battery, sexual battery by an authority figure, and incest and
received an effective sentence of forty-nine years. Petitioner’s daughter testified about
repeated rapes and sexual assaults that occurred over the course of ten years beginning
when she was four or five years old. The convictions and sentences were affirmed on
appeal. State v. Daetrus Pilate, No. W2015-00229-CCA-R3-CD, 2016 WL 369589, at
*1 (Tenn. Crim. App. Jan. 29, 2016), no perm. app. filed. .

       On August 3, 2016, Petitioner filed a pro se post-conviction relief petition,
claiming that his confession was coerced and that he was denied effective assistance of
counsel in the rape case. Specifically, he claimed trial counsel failed to: (1) “call
witnesses that were present at trial,” (2) object to statements made by the victim
“pertaining to other victims,” (3) adequately prepare him for trial, (4) object to a
statement by the trial court concerning corroboration of a victim’s statement, (5) obtain
the victim’s medical records, and (6) obtain lease agreements to show where Petitioner
lived at various times relative to the victim’s claims.

       After entry of a preliminary order and appointment of counsel on August 19, 2016,
an amended petition claiming Petitioner received ineffective assistance of counsel in both
the assault case and the rape case was filed on March 27, 2017.1 The amended petition
incorporated the claims made in the pro se petition and specifically asserted that trial
counsel failed to: (1) call character witnesses, (2) communicate adequately and provide
all relevant information, (3) properly investigate in both cases, and (4) object to

        1
         Tennessee Code Annotated section 40-30-107(b)(2) provides that counsel or a pro se petitioner
“must file an amended petition or a written notice that no amendment will be filed” and that “[t]he
amended petition or a written notice shall be filed within thirty (30) days of the entry of the preliminary
order, unless extended for good cause.” Although the record is silent as to “good cause,” the post-
conviction court apparently waived the untimeliness of the amended petition because the court considered
grounds raised for the first time in the amended petition at the hearing.
                                                   -2-
Petitioner’s excessive bail.2 Petitioner also claimed that he was denied effective
assistance of counsel based on the cumulative errors committed by trial counsel in both
cases.3

                                      Post-Conviction Hearing

        The post-conviction court conducted a hearing on August 23, 2017. Trial counsel
testified that she had been practicing criminal law since 2001 and was appointed to
represent Petitioner in both cases after the Public Defender was allowed to withdraw
because of a conflict. The Public Defender’s office provided her the discovery it had
received. The State elected to try the assault case first. Proof of serious bodily injury
was provided through the testimony of the police officer who was the victim of the
aggravated assault. Trial counsel cross-examined the officer about his injury.

       Regarding the rape case, trial counsel stated that she did not call the victim’s
family members as character witnesses because they were reluctant to testify because the
victim was Petitioner’s daughter. She said Petitioner did not provide the names of any
non-family character witnesses who would testify. She said that Petitioner asked her to
look at lease agreements which he claimed cast doubt on some of the incidents and that
he gave her “all kinds of paper” that he wanted her to introduce at trial, but the papers
were either damaging or not admissible. She said one of the State’s rebuttal witnesses
arrived at the last minute, and the trial court offered both sides an opportunity for a
continuance. She said she was familiar with what testimony of the witness would
probably be, was prepared for cross-examination, and did not think a continuance was
needed. She explained that the victim in the case had communicated something to the
Public Defender that created a conflict and that Petitioner was certain the victim would
recant. Before trial, the victim came to trial counsel’s office stating that she wanted to
recant. She asked the victim to go to the district attorney’s office and “tell them what she
told me.”4 She said the victim made multiple appointments with the State but never kept
the appointments. The victim testified during the State’s case in chief “that she had been
molested by her father.” Trial counsel subpoenaed Kathy Kent, the assistant public
defender initially assigned to represent Petitioner. Ms. Kent testified that the victim
approached her wanting to recant.5 Trial counsel testified that she met with Petitioner
several times and that she had everything she needed to be ready for trial.


        2
           Other than claim (3), the amended petition does not state if the claims apply to both cases or one
of the cases.
         3
           The same trial counsel represented Petitioner in both cases.
         4
           What the victim told trial counsel does not appear in the record.
         5
           In the opinion of the direct appeal, this court summarized Ms. Kent’s testimony as follows:

                                                   -3-
        On cross-examination, trial counsel stated she discussed asking for a continuance
of the rape trial with Petitioner when the State’s rebuttal witness arrived at the last
minute; but, Petitioner wanted to go forward with the trial. She stated that she discussed
the strengths and weaknesses of the cases with Petitioner and advised him about possible
punishment. She said Petitioner’s son testified for Petitioner in both the assault trial and
the rape trial.

       On redirect examination, trial counsel agreed that there were supposed to be two
videos in the assault case, one of the police chase and one of the incidents that led to the
assault charge. The videos were played at the trial. She said that a short portion of the
video of the assault was “not viewable.” The officer testified that something went wrong
with the video. She stated she thought she made the proper objection to the video.

        In questioning by the post-conviction court, trial counsel stated that she had tried
between twenty and twenty-five criminal jury trials, including trials involving charges of
first degree murder.

       Petitioner testified that he was first represented by the Public Defender for about a
year and then by trial counsel for a year and a half. He said trial counsel met with him
three or four times before trial. He said he received discovery while incarcerated, but he
was never provided medical documentation concerning the injury to the officer as part of
the discovery in the assault case.6 He said he wanted trial counsel to get the “lease
agreements from all the apartment complexes that [he] lived in since [he had] been in
Memphis.” Petitioner’s daughter had testified about rapes and sexual assaults that she
said occurred at several apartment complexes where the family had lived. Petitioner
claimed trial counsel “pushed [him] to . . . go ahead” with the trial rather than seek a


        During Defendant's case-in-chief, Kathy Kent testified that she was the assistant public
        defender initially assigned to represent Defendant in this case. In the fall of 2012, four or
        five months after being assigned, Ms. Kent was informed that L.P. was in the courtroom
        and wanted to speak to her. They left the courtroom and Ms. Kent introduced herself.
        L.P. admitted to Ms. Kent that she had previously told other people that Defendant raped
        her, but she denied that it actually happened. L.P. told Ms. Kent that there had not been a
        rape or any other sexual misconduct by Defendant. L.P. explained that she had lied to the
        police about why she was upset because “she was afraid she was going to get punished
        for staying out too late with her boyfriend and was afraid that her father would punish
        her.” L.P. denied to Ms. Kent that anyone was pressuring her to recant her allegations.

        Daetrus Pilate, 2016 WL 369589 at *5.
        6
         We note that Petitioner was indicted for and convicted of aggravated assault by use of a deadly
weapon, not aggravated assault that resulted in serious bodily injury.
                                                   -4-
continuance when the State’s rebuttal witness arrived at the last minute. He said he had
character witnesses, including his sister and his girlfriend, who were present at trial. He
asked trial counsel to call them but was told that they would not be “beneficial.” He said
that, during the assault trial, the State offered to settle his cases for twenty-five years. He
said that the Public Defender also said the State offered to settle the cases for twenty-five
years.

       Petitioner read a letter that he wrote to trial counsel after he was convicted which
stated that trial counsel did not adequately investigate his cases, did not adequately
prepare him to testify, and did not discuss the possible sentences he faced. He also
claimed that he “was not of sound mind” at the time of trial because of the nature of the
charges against him, having been incarcerated for three years, and having recently lost his
mother.

       On cross-examination, Petitioner stated that he testified at the trial in the assault
case but did not testify in the rape case.

       The post-conviction court entered its written order on September 29, 2017. The
court found that Petitioner’s testimony at the post-conviction hearing was not credible,
and “his post-conviction testimony [wa]s inconsistent and contradictory with his
testimony at the trial [of the assault case.]” The court accredited the testimony of trial
counsel.

        The post-conviction court found that Petitioner failed to prove by clear and
convincing evidence that trial counsel was ineffective. The court noted that Petitioner did
not call any witnesses at the post-conviction hearing that he claimed should have been
called at trial and that he did not produce the leases or medical records that he claimed
should have been introduced at trial. The court found that Petitioner “failed to establish
how the calling of any other witnesses in this trial would have made a difference in the
results of the trial.” The court found that trial counsel discussed strategy with Petitioner
and that she “investigated the case properly and was prepared for trial.” The court also
found that Petitioner failed to prove “how further preparations by his trial counsel might
have been helpful.” The court found that trial counsel employed “a well-founded
strategy” involving “challenging the credibility of the State’s witnesses and their motives
for testifying.”

        The post-conviction court determined that issues such as sufficiency of the
evidence, credibility of trial witnesses, and excessive bail should have been raised on
direct appeal and not as free-standing claims in a post-conviction proceeding.



                                             -5-
      The post-conviction court concluded that “[i]t appears [P]etitioner is suffering
from a classic case of ‘Buyer’s Remorse,’ in that he is no longer satisfied with the choice
he made when he rejected a possible guilty plea and insisted on a jury trial.” The court
denied post-conviction relief, and the Defendant timely appealed.

                                          Analysis

        On appeal, Petitioner raises a single claim that “trial counsel’s representation fell
below the standards set forth in Baxter v. Rose,” 523 S.W.2d 930 (Tenn. 1975). The
State avers that Petitioner’s post-conviction claims in the assault case were raised for the
first time in the amended petition and therefore were not timely filed and that the post-
conviction court does not have the authority to consider cases arising from separate jury
trials in a single post-conviction case. Petitioner did not file a reply brief addressing the
timeliness of the claim in the assault case or addressing the State’s assertion that the post-
conviction court lacked the authority to consider the claims for relief in the assault case.
The State also claims that Petitioner failed to establish that trial counsel’s assistance was
ineffective in the rape case or in the assault case. We agree with the State.

                        Post-Conviction Petition in Assault Case

       Tennessee Code Annotated section 40-30-104(c) provides:

              The petition for post-conviction relief shall be limited to the
       assertion of claims for relief from the judgment or judgments entered in a
       single trial or proceeding. If the petitioner desires to obtain relief from
       judgments entered in separate trials or proceedings, the petitioner must file
       separate petitions.

       The judgments of conviction in the assault case and the judgments of conviction in
the rape case were entered as the result of separate jury trials. The pro se petition sought
post-conviction relief only in the rape case. The amended petition sought relief in both
the rape case and the assault case. The post-conviction court should have summarily
dismissed the post-conviction claims related to the assault case raised for the first time in
the amended petition. Because the claims related to the assault case should have been
summarily dismissed, we need not address the timeliness of the petition in the assault
case. We will only address whether Petitioner received the ineffective assistance of
counsel in the rape case.




                                            -6-
                            Ineffective Assistance of Counsel

        In order to prevail on a petition for post-conviction relief, a petitioner must prove
all factual allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828,
830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and
fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). “[A]ppellate courts are
bound by the post-conviction court’s underlying findings of fact unless the evidence
preponderates against them.” Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015).
When reviewing the post-conviction court’s factual findings, this court does not reweigh
the evidence or substitute its own inferences for those drawn by the post-conviction court.
Id.; Fields, 40 S.W.3d at 456 (citing Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)).
Additionally, “questions concerning the credibility of the witnesses, the weight and value
to be given their testimony, and the factual issues raised by the evidence are to be
resolved by the [post-conviction court].” Fields, 40 S.W.3d at 456 (citing Henley, 960
S.W.2d at 579); see also Kendrick, 454 S.W.3d at 457. The post-conviction court’s
conclusions of law and application of the law to factual findings are reviewed de novo
with no presumption of correctness. Kendrick, 454 S.W.3d at 457.

         The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.
art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel,
a petitioner must prove two factors: (1) that counsel’s performance was deficient; and (2)
that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687
(1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that
the same standard for ineffective assistance of counsel applies in both federal and
Tennessee cases). Both factors must be proven in order for a court to grant post-
conviction relief. Strickland, 466 U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State,
938 S.W.2d 363, 370 (Tenn. 1996). Accordingly, if we determine that either factor is not
satisfied, there is no need to consider the other factor. Finch v. State, 226 S.W.3d 307,
316 (Tenn. 2007) (citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)).
Additionally, review of counsel’s performance “requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”
Strickland, 466 U.S. at 689; see also Henley, 960 S.W.2d at 579. We will not second-
guess a reasonable trial strategy, and we will not grant relief based on a sound, yet
ultimately unsuccessful, tactical decision. Granderson v. State, 197 S.W.3d 782, 790
(Tenn. Crim. App. 2006).

        As to the first prong of the Strickland analysis, “counsel’s performance is effective
if the advice given or the services rendered are within the range of competence demanded
of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523
                                            -7-
S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that
counsel was deficient, the petitioner must demonstrate “that counsel’s acts or omissions
were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see
also Baxter, 523 S.W.2d at 936.

        Even if counsel’s performance is deficient, the deficiency must have resulted in
prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong
of the Strickland analysis, 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. (quoting Strickland, 466 U.S. at 694) (internal quotation marks
omitted).

        On appeal, Petitioner limited the issues raised in his post-conviction petitions to
the effectiveness of trial counsel, claiming that she was “not properly prepared to go to
trial” because she failed “to properly investigate” and that there were “matters which
were not properly addressed by counsel which were outcome determinative.” The brief
does not state what “matters . . . were not properly addressed[.]”

       As previously stated, the post-conviction court found that Petitioner’s testimony at
the post-conviction hearing was not credible and accredited the testimony of trial counsel.
Trial counsel testified that she received and reviewed the discovery provided by the State
to the Public Defender and that she met with Petitioner several times and had everything
she needed to be ready for trial. The post-conviction court found that trial counsel
discussed strategy with Petitioner and that she “investigated the case properly and was
prepared for trial.” The post-conviction court also found that Petitioner failed to prove
“how further preparations by his trial counsel might have been helpful.”

        If by “matters not properly addressed,” Petitioner is referring to the failure to call
certain witnesses to establish his character, or the failure to obtain medical records of the
victim in the rape case, or the failure to obtain the leases; then we agree with the findings
of the post-conviction court. Petitioner did not call any character witnesses at the post-
conviction hearing that he claimed should have been called at trial, and he did not
produce the leases or medical records that he claimed should have been introduced at
trial. “To succeed on a claim of ineffective assistance of counsel for failure to call a
witness at trial, a post-conviction petitioner should present that witness at the post-
conviction hearing.” Pylant v. State, 263 S.W.3d 854, 869 (Tenn. 2008). The post-
conviction court cannot speculate as to what the testimony of the missing witness may
have been at trial and therefore cannot determine if the testimony would have amounted
to critical evidence. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).
                                            -8-
Without the post-conviction hearing testimony of a missing trial witness, it is nearly
impossible for a petitioner to show that trial counsel’s deficient performance in failing to
discover or call a trial witness prejudiced the defense. See Strickland, 466 U.S. at 687.
The same is true for documents that a petitioner claims should have been presented at
trial. Failure to present the documents at the post-conviction hearing makes it nearly
impossible for Petitioner to show that trial counsel’s deficient performance in failing to
obtain or introduce the document at trial prejudiced the defense.

       Petitioner has failed to prove that he received ineffective assistance of counsel in
the rape case.

                                       Conclusion

       The judgment of the post-conviction court denying relief is affirmed.



                                                 _________________________________
                                                 ROBERT L. HOLLOWAY, JR., JUDGE




                                           -9-
