                                                                                       02/15/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT KNOXVILLE
                        Assigned on Briefs January 24, 2018

           DE’QUON LETRAY BOYD v. STATE OF TENNESSEE

               Appeal from the Criminal Court for Hamilton County
                     No. 287505    Barry A. Steelman, Judge


                            No. E2017-00891-CCA-R3-PC


The petitioner, De’quon Letray Boyd, appeals the denial of his petition for post-
conviction relief, which petition challenged the petitioner’s 2011 convictions of
attempted first degree premeditated murder, premeditated murder, felony murder, two
counts of aggravated assault, reckless endangerment, and aggravated criminal trespass.
In this appeal, the petitioner argues that he was deprived of the effective assistance of
counsel at trial. We affirm the denial of post-conviction relief.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

John G. McDougal, Chattanooga, Tennessee, for the appellant, De’quon Letray Boyd.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Assistant
Attorney General; William H. Cox, III, District Attorney General; and Kevin Brown,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

               A Hamilton County Criminal Court jury convicted the petitioner of
attempted first degree premeditated murder, premeditated murder, felony murder, two
counts of aggravated assault, reckless endangerment, and aggravated criminal trespass in
relation to the 2006 murder of Casey Woods. On April 3, 2006, Mr. Woods, his fiancee,
Darlisa Wynn, and her grandchildren, spent the night at the home of her neighbor, Kysha
Henderson so that Ms. Wynn could care for Ms. Henderson’s children. State v. Dequon
Letray Boyd and Jemarow Deverius Tillison, No. E2009-02071-CCA-R3-CD, slip op. at
2 (Tenn. Crim. App., Knoxville, Sept. 12, 2011), perm. app. denied (Tenn. Jan. 11,
2012). At approximately 3:00 a.m., several armed men broke into the apartment and
began shooting. Mr. Woods and Ms. Wynn were both struck. Ms. Wynn identified the
petitioner as one of the shooters. “Officer Adam Emery of the Chattanooga Police
Department was finishing a call on a nearby street when he heard a loud succession of
gunshots.” Id., slip op. at 3. Officer Emery went to the scene, and, after a brief chase,
Officer Emery arrested the defendant. Mr. Woods succumbed to his wounds following a
two-day stay in the hospital. Id., slip op. at 4.

              The petitioner filed a petition for post-conviction relief on April 1, 2013,
along with a notice that he had placed his original petition for post-conviction relief with
prison authorities for mailing on January 4, 2013, but that the petition had been lost in the
mail. As proof of the time of the original filing, the petitioner appended to his pleading a
copy of the withdrawals from his inmate trust account that he claimed reflected a
withdrawal for postage to mail the petition. The petitioner alleged that he mailed a copy
of his original petition to the State on January 4, 2013, and moved the post-conviction
court to cause the State “to finish it for proper filing and/or allow” the petitioner to
submit a backdated petition as timely. In his petition, the petitioner claimed that he was
deprived of the effective assistance of counsel.

              At the August 23, 2013 evidentiary hearing, the petitioner testified that he
was charged with the offenses in this case when he was “16 going on 17.” The petitioner
said that he did not believe that his trial counsel represented the petitioner “to his best
ability” because of “the money situation.” He recalled that he asked trial counsel to call
certain witnesses, including Regina Orr, and to investigate “the criminal procedures that
the police have to take.” As to Ms. Orr’s potential testimony, the petitioner said, “I
actually don’t know what she was going to testify to, but at the same time, she was a
witness, so she was supposed to testify and could have . . . shed a whole lot of light on the
case.”

               The petitioner testified that counsel did not visit him “on a regular basis,”
having visited him between five and 10 times, and did not let him “really know what the
case was going for.” He claimed that counsel “took advantage” of his age and “mental
health status.” The petitioner said that he discussed with counsel his right to testify but
that counsel had recommended that he not take the stand. The petitioner also said that
counsel discussed with him the potential testimony of the State’s witnesses as well as the
evidence likely to be offered by the State at trial.

              The petitioner admitted that he was apprehended near the scene of the home
invasion but insisted that the State “never had any hard evidence or nothing to link” him
to the crime. He expressed dissatisfaction with the fact that his co-defendant, Jemarow
Tillison, was convicted of less serious charges despite that the same evidence was
presented as to both men at the joint trial.
                                             -2-
              The petitioner admitted that counsel correctly informed him as to the
appellate process but claimed that after counsel initiated the direct appeal, he did not hear
from counsel. He acknowledged, however, that counsel told him which issues would be
raised on appeal. The petitioner testified that he wanted counsel to challenge the show up
that occurred immediately following the offenses at which Ms. Wynn initially identified
him as one of the perpetrators. He stated that police took him back to the scene
immediately following his arrest in violation of his constitutional rights.

               During cross-examination, the petitioner acknowledged that the first page
of his petition for post-conviction relief indicated a filing date of April 1, 2013. He
explained that he originally “sent it out” on January 4, 2013. He said that when he
telephoned the court clerk’s office to inquire about the status of the petition, he learned
that it had not been received. At that point, he “re-sent another copy” of the petition.
The petitioner identified for the record the notarized copy of the ledger from his inmate
trust account, which indicated that the document had been notarized on March 26, 2013.

              The State moved to dismiss the petition on grounds that the petitioner had
failed to comply with the statute of limitations for filing a petition for post-conviction
relief. The post-conviction court did not rule on the motion at that point but directed the
State to proceed with cross-examining the petitioner.

              The petitioner insisted that he wanted counsel to present Regina Orr as a
witness despite that he did not know what her testimony might be. He acknowledged that
Ms. Wynn identified him as one of the perpetrators but that no one had identified Mr.
Tillison as having been a part of the home invasion. He conceded that testing revealed
the presence of gunshot residue on his hands but claimed that the arresting officer had
transferred the residue to his hands during the arrest. The petitioner admitted that trial
counsel cross-examined the State’s ballistics expert about the likelihood that gunshot
residue had been transferred to the petitioner’s hands.

              With regard to his claimed learning disability and mental health issue, the
petitioner acknowledged that he had been evaluated before being transferred to criminal
court from juvenile court. He did not have another evaluation after his transfer. The
petitioner acknowledged that the doctor who performed the evaluation testified at his
sentencing hearing.

              During redirect examination, the petitioner testified that he initially placed
his original petition for post-conviction relief with prison officials for mailing on January
4, 2013. When he received no response, he telephoned the clerk’s office to see if they

                                             -3-
had received it. He said that someone in the clerk’s office told him to resend the petition,
so he did. The petition, he said, was prepared with the assistance of another inmate.

               Trial counsel testified that he met with the petitioner at the Hamilton
County Jail more than 12 times after he was appointed to represent him. Counsel said
that “[i]t took extra time to explain things to” the petitioner because the petitioner “was
young . . . and did seem to grasp things” more slowly. As a result of the observed delay
in the petitioner’s understanding, trial counsel engaged the services of a Doctor Solovey
to evaluate the petitioner. Counsel testified that “the bottom line” of Doctor Solovey’s
evaluation was that the petitioner “had slight mental retardation issues but it was not
enough to affect his competency to stand trial.” Counsel recalled that the petitioner’s IQ
was in the “[h]igh 70s . . . 79 maybe.” At one point, the petitioner’s IQ had been
measured at 81, and, at another time, it had been measured at 76. Counsel said that
Doctor Solovey’s conclusions regarding the petitioner’s competency match those reached
by another evaluator in the juvenile court.

               Trial counsel testified that following his appointment, he secured extra
funds from the criminal court to hire an investigator, and the investigator spent 84 hours
investigating the case. Counsel interviewed the petitioner and his family. Counsel said
that he went with the investigator to the scene of the crime and that they “talked to
everybody that would talk to” them. Counsel said that the object of the defense was to
establish reasonable doubt. Counsel said that he moved to suppress Ms. Wynn’s
identification of the petitioner, but he did not recall the identification having been in the
nature of a crime scene show up. He explained, “I think Ms. Wynn was in the hospital,
she was shot, so I don’t recall that.” Counsel did not challenge the denial of the motion
on appeal because he did not believe there was any merit to such a claim.

               Counsel testified that he discussed with the petitioner the petitioner’s right
to testify and that he recommended that the petitioner not take the stand based upon his
“experience with talking to [the petitioner] and working with him on the case.” In
addition, the petitioner “was charged with another shooting and was apprehended” while
released on bond in the juvenile court for the charges in this case. After he was
incarcerated but before the trial in this case, the petitioner “and another group were
accused . . . of attacking another inmate seriously.” Counsel went to observe the hearing
on the assault charge that arose from the jail attack, “and when [the petitioner] came out,
he acted inappropriately. He cussed and talked, interrupted the Court, and it was
alarming.” Based upon these observations, counsel “just felt it wasn’t best for him to
testify” because “he would incriminate himself if he did.”

             Counsel testified that he did not seek suppression of the dash camera video
recording because he used it in the petitioner’s defense at trial. Counsel explained that
                                             -4-
the video recording shows the entire case as it unfolds from the time the officers hear
gunshots to the time they apprehend the offenders. Counsel said that the tape also
showed an officer securing the weapon used to kill Mr. Woods right before that same
officer went to loosen the petitioner’s handcuffs. Counsel utilized the videotape as a
means to explain the presence of gunshot residue on the petitioner’s hands.

               At the conclusion of the proof, the post-conviction court indicated that it
would allow the petitioner to produce documentation in support of his claim regarding
the statute of limitations. In the order denying post-conviction relief, however, the court
indicated that “without the introduction of additional proof, the [S]tate conceded the
timeliness of the petition.” The post-conviction court then denied relief based upon the
merits of the petitioner’s claims. The court concluded that the petitioner had failed to
present clear and convincing evidence to support any of his claims.

              In this appeal, the petitioner reiterates his claim of ineffective assistance of
counsel, arguing that his counsel performed deficiently by failing to meet with him and
explain the nature of the charges against him and by failing to call witnesses favorable to
the defense.

              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
                                             -5-
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. 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.
State, 454 S.W.3d 450, 458 (Tenn. 2015) (citing Strickland, 466 U.S. at 689), 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).

              A claim of ineffective assistance of counsel is a mixed question of law and
fact. Kendrick, 454 S.W.3d at 457; Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010);
State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453,
461 (Tenn. 1999). When reviewing the application of law to the post-conviction court’s
factual findings, our review is de novo, and the post-conviction court’s conclusions of
law are given no presumption of correctness. Kendrick, 454 S.W.3d at 457; Fields, 40
S.W.3d at 457-58; see also State v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

              In our view, the record supports the denial of post-conviction relief. Trial
counsel’s accredited testimony established that he met with the petitioner no fewer than
12 times prior to trial and that he took extra time to ensure that the petitioner understood
the charges against him as well as the theory of the defense. Counsel secured funding for
the services of an investigator to assist in the case and a mental health professional to
evaluate the petitioner’s competency to stand trial. The petitioner suggested the name of
only a single potential witness, Regina Orr, but acknowledged that he did not know what
testimony Ms. Orr might have offered at his trial. Additionally, the petitioner did not
present Ms. Orr as a witness at the evidentiary hearing. Under these circumstances, we
cannot speculate what Ms. Orr might have testified to at trial. See Black v. State, 794
S.W.2d 752, 757 (Tenn. Crim. App. 1990) (“When a petitioner contends that trial counsel
failed to discover, interview, or present witnesses in support of his defense, these
witnesses should be presented by the petitioner at the evidentiary hearing.”).

              Accordingly, we affirm the judgment of the post-conviction court.
                                             -6-
       _________________________________
      JAMES CURWOOD WITT, JR., JUDGE




-7-
