         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs July 13, 2004

               ALBERT YARBROUGH v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                          No. P-26800    Arthur T. Bennett, Judge



                    No. W2004-00867-CCA-R3-PC - Filed August 13, 2004


The petitioner, Albert Yarbrough, was convicted by a jury in the Shelby County Criminal Court of
rape, a Class B felony. The trial court sentenced the petitioner as a violent offender to fourteen years
in the Tennessee Department of Correction. Following an unsuccessful appeal of his conviction, the
petitioner filed a petition for post-conviction relief, alleging, among other grounds, ineffective
assistance of counsel. The post-conviction court denied the petition, finding the petition to be barred
by the statute of limitations and the petitioner’s allegations to be without merit. The petitioner now
brings this appeal challenging the denial of his petition for relief. Upon review of the record and the
parties’ briefs, we conclude that the petitioner timely filed his petition for post-conviction relief.
However, we affirm the post-conviction court’s denial of the petition on the merits.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
ALAN E. GLENN , JJ., joined.

Juni S. Ganguli, Memphis, Tennessee, for the appellant, Albert Yarbrough.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Lee Coffee, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                              OPINION

                                      I. Factual Background

        The petitioner was convicted by a jury of rape and sentenced as a violent offender to fourteen
years incarceration. The petitioner subsequently filed a direct appeal challenging the sufficiency of
the evidence. On April 12, 2002, this court affirmed the conviction. State v. Albert Yarbrough, No.
W2001-01150-CCA-R3-CD, 2002 WL 1732337 (Tenn. Crim. App. at Jackson, Apr. 12, 2002). On
September 30, 2002, the petitioner filed a pro se petition for post-conviction relief. The post-
conviction court appointed counsel, and an amended petition was filed, alleging ineffective
assistance of counsel at trial. On September 18, 2003, the post-conviction court held an evidentiary
hearing at which the petitioner, his trial counsel, and a fellow inmate testified.

        At the evidentiary hearing, trial counsel testified that she was licensed to practice law in 1987
and was employed by the public defender’s office for fifteen years. She related that she had
previously tried approximately fifty criminal cases. Trial counsel testified that upon being appointed
to represent the petitioner, she filed the appropriate motions, including a motion for discovery and
a motion to suppress the victim’s out of court identification. Additionally, she filed the proper
responses to the State’s motions and challenged the chain of custody of the petitioner’s DNA sample.
Trial counsel testified that she spent twenty to thirty hours preparing for the petitioner’s trial, not
including three days of trial and several hearings on sentencing. Moreover, trial was reset numerous
times while the parties awaited the results of DNA analysis.

        Trial counsel testified that the petitioner was in custody when she was first appointed to
represent him; however, he was subsequently released on bond. Trial counsel related that she did
not learn that the petitioner had been released on bond until a subsequent court date. Trial counsel
visited the petitioner in jail on three occasions and also talked with him at court appearances. She
explained that once the petitioner was released on bond, it was his responsibility to contact her for
appointments. According to trial counsel, the petitioner never came to the public defender’s office
and telephoned only twice. Nevertheless, trial counsel related that her visits with the petitioner were
productive. Trial counsel stated, “We talked about the DNA at length . . . [and] I gave him copies
of the DNA report and [other discovery materials].”

        Trial counsel conceded that neither she nor the investigator from the public defender’s office
interviewed the victim in the instant case. However, trial counsel stated that she learned of the
victim’s allegations through the affidavit of complaint, discovery materials, and testimony at the
suppression hearing. Moreover, prior to trial, the State allowed trial counsel to review and take notes
from the victim’s statement. Trial counsel maintained that she was not surprised by any of the
victim’s testimony and she questioned the victim regarding the “number of inconsistencies” in her
testimony.

         Regarding the theory of defense, trial counsel testified that the petitioner maintained his
innocence throughout the trial process, claiming that he had never seen the victim. The petitioner
provided trial counsel with the names of alibi witnesses, and trial counsel and the investigator
contacted these witnesses. Trial counsel subsequently learned that the results of DNA analysis of
semen found on the victim matched the petitioner’s DNA. Trial counsel explained to the petitioner
that based upon the DNA results, an alibi defense would not likely be successful. Nevertheless, the
petitioner insisted on going to trial. However, prior to trial, the petitioner decided not to present the
testimony of the alibi witnesses. At trial, counsel vigorously challenged the chain of custody of the
petitioner’s blood samples in an attempt to attack the reliability of the DNA analysis. Trial counsel
testified that because the petitioner denied having sex with the victim, she did not pursue the defense
of consent. She further explained that the defense of consent would not have been successful


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because the victim had been beaten during the rape, resulting in the loss of teeth and bruising about
the face.

         When asked if she had questioned the victim on cross-examination about being a prostitute,
trial counsel replied that she asked the victim about her employment. The victim responded that she
was unemployed. Trial counsel then asked the victim why she was out late at night, and the victim
responded that she had been to a party. Trial counsel testified that unless the victim had admitted
she was a prostitute, there was no way to prove it.

        Trial counsel testified that in November of 2000, the State offered the petitioner a sentence
of eight years. In light of the DNA results and the victim’s identification of the petitioner, trial
counsel believed eight years was “a great offer.” Trial counsel informed the petitioner of the State’s
offer two weeks later, at which time she also provided him with copies of the DNA results and
discovery materials and discussed the contents of the victim’s statement. Trial counsel advised the
petitioner of the State’s evidence, including the DNA results and the victim’s identification of the
petitioner. She further explained that rape was a violent offense for which the petitioner could
receive a sentence of twelve to twenty years with no possibility of parole. The petitioner refused to
accept the State’s offer.

        Trial counsel testified that the State’s offer of eight years was available until jury selection.
Once the jury was selected, the trial court voir dired the petitioner about his refusal to accept the plea
offer. Trial counsel stated that the petitioner knowingly, intelligently, and voluntarily rejected the
State’s offer, explaining that she and the petitioner had discussed the offer several times and the
petitioner was well-advised of the facts of the case. Moreover, the petitioner had prior convictions
and was familiar with the criminal justice system. According to trial counsel, the petitioner was
confident that a jury would not believe the victim. “[The petitioner] was adamant from day one that
he did not do this and he wanted a trial.”

        Donald Watkins testified that he was an inmate in the Tennessee Department of Correction,
serving sentences for drug convictions and violating the Motor Vehicle Habitual Offender’s Act.
Prior to incarceration, Watkins had lived in Memphis where he sold drugs. Watkins related that he
had known the petitioner for approximately five years and he and the petitioner were currently
incarcerated at the same facility. Watkins testified that prior to the petitioner’s trial, the petitioner
informed him that he had been charged with raping the victim. Watkins told the petitioner that he
had previously sold cocaine to the victim and the victim had offered sex in exchange for drugs.
Watkins testified that he would have testified to these facts at the petitioner’s trial, but he was never
contacted by anyone from the public defender’s office. On cross-examination, Watkins conceded
that he had never seen a picture of the victim.

       At the evidentiary hearing, the petitioner testified that trial counsel failed to provide adequate
representation. According to the petitioner, trial counsel failed to consult with him and failed to file
the proper motions. The petitioner claimed that trial counsel should have filed a motion to hire a
DNA expert to refute the testimony of the State’s DNA expert. The petitioner further claimed that


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he did not receive the results of the DNA analysis until the day of trial. The petitioner conceded that
he never informed anyone about the ineffectiveness of trial counsel, but claimed that he did not know
who to contact.

         The petitioner testified that trial counsel advised him that rape was a Class B felony for which
he could receive a sentence of twenty to thirty years incarceration without the possibility of parole.
He further acknowledged that trial counsel advised him that his prior convictions could be used to
enhance his sentence. The petitioner stated that on the day of trial, counsel provided him with the
results of the DNA analysis. The petitioner claimed that at that time he believed that the State’s offer
was twenty years. He denied that counsel informed him prior to trial of the State’s offer of eight
years incarceration. According to the petitioner, “[h]alfway through trial she asked me why wouldn’t
I take the eight. And I asked her what eight?” The petitioner stated that he might have accepted the
State’s offer of eight years, but he did not have adequate time to consider the offer. The petitioner
claimed that he did not know that he could have pled guilty in the middle of trial.

        The petitioner further testified that trial counsel did not present an adequate defense. The
petitioner acknowledged that he told trial counsel that he did not rape the victim. Nevertheless, the
petitioner claimed that upon receiving the DNA results, trial counsel should have insisted upon
pursuing a defense of consent. However, the petitioner conceded that he never informed her that he
had consensual sex with the victim. He claimed that because trial counsel believed he was guilty,
it would not have made a difference. Moreover, he did not want his family to learn of the
extramarital affair. The petitioner explained that he had known the victim prior to the alleged rape
and she had previously performed oral sex on him.

        The petitioner testified that trial counsel visited him several times in jail and they met once
in the courtroom. He acknowledged that he provided trial counsel with the names of alibi witnesses,
but subsequently decided not to call them to testify. He explained that he did not want them to
provide false testimony. On cross-examination, the petitioner conceded that he had previously been
convicted of two misdemeanors and seven felonies, including burglary, sexual offenses, assault with
intent to commit murder, robbery, and aggravated kidnapping.

        At the conclusion of the testimony, the post-conviction court denied the petition for post-
conviction relief. Specifically, the post-conviction court found that the petitioner had been untruthful
in his petition and in his testimony. The post-conviction court found that trial counsel was effective
and vigorously represented the petitioner at trial, stating, “[she] put forth the best defense she could
based on the factual situation that she had to deal with. She did everything that a lawyer could have
done under the facts of your case.” Thereafter, the post-conviction court entered written findings of
facts and conclusions of law, finding the petition to be barred by the statute of limitations and the
petitioner’s allegations to be without merit. The petitioner now brings this appeal challenging the
denial of his petition for post-conviction relief.




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                                             II. Analysis

                                      A. Statute of Limitations

       Tennessee Code Annotated section 40-30-102(a) (2003) provides in pertinent part that

               a person in custody under a sentence of a court of this state must
               petition for post-conviction relief under this part within one (1) year
               of the date of the final action of the highest state appellate court to
               which an appeal is taken or, if no appeal is taken, within one (1) year
               of the date on which the judgment became final, or consideration of
               such petition shall be barred.

        As the State concedes, the post-conviction court erred by finding that the instant petition was
time-barred. In its findings of fact, the post-conviction court stated that the petitioner was convicted
on March 21, 2001, but did not file his petition for post-conviction relief until September 30, 2002,
more than one year after the judgment became final. However, the petitioner filed a direct appeal
to this court. Thus, the judgment did not become final until this court affirmed the petitioner’s
conviction on April 12, 2002. Accordingly, the petitioner timely filed for post-conviction relief.

                                B. Ineffective Assistance of Counsel

        In a post-conviction proceeding, the petitioner bears the burden of proving the grounds raised
in the petition by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f) (2003).
“Evidence is clear and convincing when there is no serious or substantial doubt about the correctness
of the conclusions drawn from the evidence.” Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim.
App. 1998) (citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)). Questions
regarding the credibility of witnesses, the weight and value to be accorded their testimony, and the
factual issues raised by the evidence are to be resolved by the post-conviction court as the trier of
fact. Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). Therefore, we afford the post-conviction
court’s findings of fact the weight of a jury verdict, with such findings being conclusive on appeal
absent a showing that the evidence in the record preponderates against those findings. Id. at 578.

        On appeal, a claim of ineffective assistance of counsel presents a mixed question of law and
fact subject to de novo review. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). As such, the post-
conviction court’s findings of fact are entitled to a presumption of correctness unless the evidence
preponderates against those findings. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). However,
a post-conviction court’s conclusions of law, such as whether counsel’s performance was deficient
or whether that deficiency was prejudicial, are subject to a purely de novo review with no
presumption of correctness. 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


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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, 104 S. Ct. 2052, 2064 (1984)).

                Because 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.

Id. at 370.

        To establish constitutionally deficient performance, the petitioner must demonstrate that
counsel’s representation fell below an objective standard of reasonableness. Strickland, 466 U.S.
at 687-88, 104 S. Ct. at 2064; Burns, 6 S.W.3d at 462. Specifically, the petitioner must show that
counsel’s performance was not within “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, 104 S. Ct. at 2068;
see also Dean v. State, 59 S.W.3d 663, 667 (Tenn. 2001).

         On appeal, the petitioner alleges numerous instances of ineffective assistance of trial counsel.
The petitioner contends that trial counsel failed to interview the victim or other witnesses, made no
effort to suppress the victim’s out of court identification of the petitioner, failed to prepare the
petitioner for trial, failed to inform the petitioner of the futility of an alibi defense, failed to present
the testimony of Donald Watkins who would have testified that the victim was a cocaine-addicted
prostitute, and failed to adequately prepare for trial. The petitioner argues that cumulatively these
deficiencies gave rise to a reasonable probability that, but for trial counsel’s errors, the result of the
proceeding would have been different. We find the petitioner’s allegations to be without merit.

       As previously noted, the post-conviction court found that trial counsel was effective and
vigorously represented the petitioner at trial, stating that trial counsel had “put forth the best defense
she could based on the factual situation she had to deal with.” The post-conviction court obviously
accredited the testimony of trial counsel. The record does not preponderate against those findings.

                                            III. Conclusion

        Accordingly, we affirm the judgment of the post-conviction court.




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      ___________________________________
      NORMA McGEE OGLE, JUDGE




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