         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs December 4, 2007

                   STACY JOHNSON v. STATE OF TENNESSEE

                      Appeal from the Criminal Court for Shelby County
                        No. 01-06779    James C. Beasley, Jr., Judge



                    No. W2007-00293-CCA-R3-PC - Filed April 11, 2008


The petitioner, Stacy Johnson, was convicted of eight counts of burglary of a motor vehicle, two
counts of burglary of a building, and theft of property over $1000. He received an effective sentence
of thirty years. He seeks post-conviction relief arguing that he received the ineffective assistance of
counsel at trial. He appeals the trial court’s denial of post-conviction relief, arguing that his trial
counsel was ineffective in failing to move to sever his indictments and in failing to investigate an
alibi defense and defense witnesses. We affirm the judgment of the trial court.

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

JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which DAVID G. HAYES and ROBERT
W. WEDEMEYER , JJ., joined.

Charles S. Mitchell, Memphis, Tennessee, for the appellant, Stacy Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Michele Parks, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

        The petitioner’s convictions relate to several vehicle break-ins, break-ins at two businesses,
and an automobile theft on March 19, 2001. At the post-conviction hearing, the petitioner testified
that on that day, he had hired a cab to take him from his mother’s house to Seesel’s grocery store.
He denied any involvement in the burglaries and thefts and said he had left Seesel’s to meet a date
when a police officer attacked him, arrested him, and put him in custody.

       The petitioner testified that his trial counsel did not ask him much about his case the first day
they met. He said counsel was mostly concerned with other cases he had, although counsel did ask
him if he had any witnesses. The petitioner said he had a number of “report dates” before trial,
during which he reported to the trial court on the progress of his case. He said he met with his trial
counsel on these dates for about fifteen to twenty minutes and that counsel spent most of the time
talking about potential plea offers and resetting the case. He said counsel did not talk about the
investigation of the petitioner’s case. The petitioner was in jail from the time he was arrested until
the time of trial, but he said counsel only visited him in jail once over the course of fifteen months
to discuss a plea offer. He said trial counsel never presented him with any discovery materials and
never talked to him about the indictments and the elements of the charges against him. He said
counsel also never informed him of the range of punishment he was facing for his crimes.

        The petitioner said he told counsel about an alibi defense–that he had hired a cab the day he
was arrested. He wrote a letter to counsel stating that on the evening of March 19, 2001, he hired
a cab from his mother’s house to Seesel’s. He said that, to his knowledge, counsel did not contact
the cab company or his mother to verify this. He said counsel did not ask him many details about
the case. The petitioner said that the first time he was presented with a plea offer from the state was
fifteen months after his arrest. He said he and counsel had a “breakdown in communication” when
the petitioner refused the offer. He said they had “cross words” with each other and yelled at each
other. The petitioner said that, after that episode, he wrote letters to the Board of Professional
Responsibility and the trial court asking that his counsel be dismissed and that he be appointed new
counsel. He said he wanted new counsel because he and counsel had a “lack of communication” and
were unable to agree on anything. He said that counsel stopped communicating with him and that
he requested many things of counsel that counsel did not do. He said that, for instance, he requested
counsel to file motions for exculpatory evidence and for the state’s intent to use evidence and to
provide him with a copy of the preliminary hearing transcript. He said counsel did none of this. He
said he also asked counsel to file a motion to sever his indictments in order for him to receive
separate trials on the separate charges.

        The petitioner testified that his trial counsel never discussed trial strategy with him. He said
he believed counsel was not interested in representing him. He said he did not know who the state’s
witnesses were or what their testimony would be until the trial. He said counsel told him the state
had a surveillance video but did not tell him about witnesses who saw him going into and out of a
stolen car. He said counsel never asked him about any mental problems, learning disabilities, or
drug or alcohol abuse. He said counsel did not talk to him about his testifying at trial, although he
did have a hearing during which he told the court he did not wish to testify. He said he got a
different attorney to represent him for his motion for a new trial and on appeal.

         On cross-examination, the petitioner testified that he gave his trial counsel information about
the cab company and his mother. He said he also told counsel that he was meeting a girlfriend on
March 19, 2001, but that he did not want his girlfriend involved in the case because she was married
at the time. He said he was present during the preliminary hearing and heard the evidence the state
presented. However, he said trial counsel never talked to him about what was going to happen
during the trial. He acknowledged that his theory of the case was that he did not commit the crimes
and that trial counsel cross-examined the state’s witnesses who said they could not identify the
petitioner as the person who broke into their cars. He acknowledged that the state presented a
surveillance videotape and that trial counsel argued that the person in the tape was not the petitioner.


                                                  -2-
He acknowledged that he had several prior felony convictions, which influenced his decision not to
testify. However, he said his trial counsel never talked to him about his prior convictions or
informed him that he would be sentenced as a career offender.

        The petitioner’s trial counsel testified that he was appointed to represent the petitioner in
September 2001. He said that his practice during a first meeting with a new client is to review the
client’s file and the indictments and get the client’s story about the case. He said he remembered the
petitioner telling him that he did not commit the crimes in question and that he was meeting a
woman on the night that the crimes occurred. The petitioner would not, however, give counsel the
name or contact information of the woman because she was married and he wanted to protect her
identity. He said he did not recall anyone from the petitioner’s family contacting him. He said that
he repeatedly asked the petitioner to give him the name of the woman the petitioner said he met the
night of the burglaries but that the petitioner repeatedly refused. Trial counsel believed that this
woman would be the best witness for the petitioner at the trial and that without her involvement, they
“didn’t have anything to go forward on” except the petitioner’s word. He said he did not recall the
petitioner giving him information about a cab company, although he later said he remembered the
petitioner mentioning a cab but that his primary interest was in finding the woman the petitioner met
that night.

        Counsel testified that he reviewed the petitioner’s criminal history, which he called
“extensive.” He said he did not look into the petitioner’s family or mental health history. He said
he never questioned the petitioner’s competence. Counsel testified that he never intended to take
the case to trial but rather sought to obtain a plea offer from the state with a minimal amount of
incarceration. He said that the evidence against the petitioner was overwhelming and that he thought
getting a good plea agreement was in the petitioner’s best interest. He said that he did eventually
get the state to offer the petitioner a ten-year sentence but that the petitioner refused the offer.

        Counsel testified that he viewed and copied the state’s file and was aware of all the evidence
that would be presented against the petitioner. This evidence included surveillance videotapes,
police testimony that the petitioner was driving a stolen car with stolen property from other
burglarized cars in it, and the proximity of the cars and buildings where the burglaries occurred and
where the petitioner was found. He said evidence in the petitioner’s favor included no one seeing
the petitioner burglarizing the cars and the police obtaining no fingerprints connected to the
petitioner. Counsel said he “could not imagine” that he did not give the petitioner discovery
material, although he could not specifically remember what he gave the petitioner and when.

        Counsel testified that he had difficulty working with the petitioner. He said they had
arguments regarding the petitioner’s refusal to reveal the identity of the woman he was with the night
of the burglaries. He said the petitioner would not cooperate with him at times and asked the trial
judge to remove counsel from the case. He said that after the petitioner rejected the ten-year plea
offer, his only available trial strategy was to question the identity of the petitioner as the burglar,
which he did through his cross-examination of witnesses and argument that the petitioner was not
the person shown in surveillance videos. He said he did not use the services of an investigator


                                                 -3-
because the petitioner did not give him the information that would have been most useful in an
investigation, i.e., the identity of the woman with him the night of the burglaries. He said he talked
to the police officers involved in the case, although he did not do this when he was first appointed
to the case.

         Counsel testified that he and the petitioner never discussed the issue of severing his
indictments. He said he chose not to argue for a severance because his strategy was to get through
trial and then obtain concurrent sentences based on the offenses all being part of one event. He was
concerned about the sentences because of the petitioner’s criminal history. He said that to obtain a
severance, he would have had to argue that the offenses were separate acts that should be tried
separately. He feared he would lose credibility with the trial court if he argued both things. The
state stipulated that the only motion trial counsel filed on the petitioner’s behalf was a motion for
discovery.

        The trial court accredited the testimony of counsel, found that the petitioner did not receive
the ineffective assistance of counsel, and denied the petition for post-conviction relief. The
petitioner appeals this judgment, arguing that his counsel was ineffective in not moving to sever his
charges and in not investigating his alibi and defense witnesses. The state counters that trial
counsel’s performance was not deficient or prejudicial to the petitioner.

        The burden in a post-conviction proceeding is on the petitioner to prove his grounds for relief
by clear and convincing evidence. T.C.A. § 40-30-110(f). On appeal, we are bound by the trial
court’s findings of fact unless we conclude that the evidence in the record preponderates against
those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). Because they relate to mixed
questions of law and fact, we review the trial court’s conclusions as to whether counsel’s
performance was deficient and whether that deficiency was prejudicial under a de novo standard with
no presumption of correctness. Id. at 457. Post-conviction relief may only be given if a conviction
or sentence is void or voidable because of a violation of a constitutional right. T.C.A. § 40-30-103.

        Under the Sixth Amendment to the United States Constitution, when a claim of ineffective
assistance of counsel is made, the burden is on the petitioner to show (1) that counsel’s performance
was deficient and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838,
842-44 (1993). A petitioner will only prevail on a claim of ineffective assistance of counsel after
satisfying both prongs of the Strickland test. See Henley v. State, 960 S.W.2d 572, 580 (Tenn.
1997). The performance prong requires a petitioner raising a claim of ineffectiveness to show that
the counsel’s representation fell below an objective standard of reasonableness or “outside the wide
range of professionally competent assistance.” Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. The
prejudice prong requires a petitioner to demonstrate that “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at
694, 104 S. Ct. at 2068. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id., 104 S. Ct. at 2068. Failure to satisfy either prong results in the
denial of relief. Id. at 697, 104 S. Ct. at 2069.


                                                 -4-
        In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that
attorneys should be held to the general standard of whether the services rendered were within the
range of competence demanded of attorneys in criminal cases. Further, the court stated that the range
of competence was to be measured by the duties and criteria set forth in Beasley v. United States,
491 F.2d 687, 696 (6th Cir. 1974), and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir.
1973). Also, in reviewing counsel’s conduct, a “fair assessment of attorney 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, 104 S. Ct. at 2065. “Thus, the fact that a
particular strategy or tactic failed or even hurt the defense does not, alone, support a claim of
ineffective assistance.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). Deference
is made to trial strategy or tactical choices if they are informed ones based upon adequate
preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); see DeCoster, 487 F.2d at 1201.

       In the present case, the petitioner alleges trial counsel rendered the ineffective assistance of
counsel in two ways. First, he alleges that counsel was ineffective in failing to sever the eleven
indictments on which he was convicted. However, the petitioner has not presented evidence that a
motion to sever offenses would have been successful. We note that this court previously considered
whether it was error for the trial court not to sever the petitioner’s charges. The court held:

                       We cannot conclude that the trial court erred when it
               consolidated the [petitioner’s] offenses. The offenses in this case
               appear to be part of a common scheme or plan because they are part
               of the same criminal episode. The offenses occurred in the same
               geographic area during the same time period, and evidence of many
               of the crimes was found in the vehicle in which the [petitioner] was
               apprehended. This connection shows a common plan and, further,
               evidence of one offense would be admissible in the trial of the other
               offenses if the offenses had been severed. Therefore, we conclude
               that the trial court did not err by allowing the offenses in this case to
               be consolidated.

State v. Stacy Johnson, No. W2004-00464-CCA-R3-CD, Shelby County, slip op. at 13 (Tenn. Crim.
App. Mar. 15, 2005). Although the petitioner now claims that it was trial counsel, as opposed to the
trial court, who erred in not seeking to sever the offenses, our court’s prior opinion on the severance
issue leads us to conclude that a motion by trial counsel to sever charges likely would not have been
successful. Further, as this court previously concluded, even if the charges were severed, evidence
of the different charges would have been admissible in the separate trials. Therefore, we are not
convinced that the result of the case would have been different had counsel moved for a severance
of offenses. The petitioner has not shown that he was prejudiced by the actions of counsel and,
therefore, has not shown ineffectiveness on this issue.




                                                 -5-
        Regarding the petitioner’s second allegation of counsel’s ineffectiveness, that counsel failed
to investigate his alibi and other defense witnesses, we note that “[w]hen 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.” Black v. State, 795
S.W.2d 752, 757 (Tenn. Crim. App. 1990). Although the petitioner testified at the post-conviction
hearing that he had an alibi and potential defense witnesses, he did not present these witnesses at the
post-conviction hearing to testify as to what counsel would have discovered upon adequate
investigation. Without this evidence, we cannot conclude that the result of the petitioner’s case
would have been different had counsel done further investigation. Again, the petitioner has failed
to show that the actions of counsel prejudiced him. We cannot conclude that his trial counsel was
ineffective.

       For the foregoing reasons, we conclude that the trial court did not err in denying the petitioner
post-conviction relief. The judgment of the trial court is affirmed.



                                                        ___________________________________
                                                        JOSEPH M. TIPTON, PRESIDING JUDGE




                                                  -6-
