        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                  Assigned on Briefs August 16, 2016 at Knoxville

            MARTIN DEAN GIBBS v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                   No. 2009-D-3561 Mark J. Fishburn, Judge


               No. M2016-00218-CCA-R3-PC – Filed October 13, 2016


The Petitioner, Martin Dean Gibbs, appeals as of right from the denial of his petition for
post-conviction relief, wherein he challenged his convictions for multiple counts of
aggravated sexual battery of a child less than thirteen years of age and rape of a child
more than three years of age but less than thirteen years of age. See Tenn. Code Ann. §§
39-13-504; -522. On appeal, the Petitioner contends that he received ineffective
assistance of counsel based on trial counsel‟s failure to provide appropriate
accommodations for the Petitioner‟s hearing difficulties during his trial. The Petitioner
claims that, because of this failure, he was unable to meaningfully participate in his own
defense at trial. Following our review, we affirm the judgment of the post-conviction
court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and NORMA MCGEE OGLE, JJ., joined.

Comer L. Donnell, District Public Defender; and Ryan C. Caldwell, Nashville,
Tennessee, for the appellant, Martin Dean Gibbs.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Glenn R. Funk, District Attorney General; and Alyssa Henning, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                              FACTUAL BACKGROUND



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        On December 18, 2009, the Davidson County Grand Jury indicted the Petitioner
for eight counts of aggravated sexual battery of a child less than thirteen years of age and
four counts of rape of a child more than three years of age but less than thirteen years of
age. See Tenn. Code Ann. §§ 39-13-504; -522. Following a jury trial, the Petitioner was
convicted as charged, except for one count of rape of a child, which resulted in a
conviction of the lesser-included offense of aggravated sexual battery of a child. The
trial court sentenced the Petitioner to a total effective sentence of twenty-five years at
100% to be served in the Tennessee Department of Correction.

       The Petitioner appealed his conviction and challenged the witness testimony,
arguing that the evidence was insufficient to support his conviction, and asserting that
there was a violation of his right against double jeopardy. State v. Martin Dean Gibbs,
No. M2011-00740-CCA-R3-CD, 2012 WL 2402674, at *1 (Tenn. Crim. App. June 27,
2012), perm. app. denied (Tenn. Oct. 17, 2012). The State acknowledged that the
evidence was insufficient to support one count of rape of a child more than three years of
age but less than thirteen years of age. This court agreed and dismissed that count and
affirmed the remainder of the Petitioner‟s convictions. Id.1

       As recounted on direct appeal, the Petitioner‟s convictions arose from the
following facts. The aggravated sexual battery offenses occurred between April 25,
2006, and December 3, 2009, and the rape of a child offenses occurred between July 1,
2007, and December 3, 2009. Id. at *1. The victim of the offenses was the Petitioner‟s
step-granddaughter, who was born in April 2001. Id. At trial, the victim testified that she
was nine years old. Id. at *2. The State showed her an anatomical drawing of a young,
naked female, and the victim identified “the breasts, buttocks, and genitalia.” Id. The
State also showed her an anatomical drawing of a naked man, and she identified “the
breasts, buttocks, and genitalia[.]” Id. The victim “referred to the buttocks as „bottom‟
and the genitalia as „stuff.‟” Id. She stated that she would spend time at her
grandparents‟ home “playing on the computer, watching television, and riding a four-
wheeler.” Id. She then explained that during these visits, her grandfather, the Petitioner,
touched her “stuff.” The victim testified that the Petitioner would “usually put his hands
in [her] stuff” while she was in the computer room. The victim stated the Petitioner
touched her skin and over her clothes. Id. The victim then described several other
incidents of abuse that occurred in her grandparents‟ bedroom and while she and the
Petitioner were riding a four-wheeler. Id. at *3.




1
 Based upon our calculations of the results of the jury trial and the direct appeal, we find the Petitioner
has nine convictions for aggravated sexual battery of a child less than thirteen years of age and two
convictions for rape of a child more than three years of age but less than thirteen years of age. See Tenn.
Code Ann. §§ 39-13-504; -522.


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        On October 16, 2013, the Petitioner filed a timely petition for post-conviction
       2
relief. Upon appointment of counsel, the Petitioner filed an amended petition. The post-
conviction court held an evidentiary hearing. At the post-conviction court‟s evidentiary
hearing, the Petitioner testified first. The Petitioner confirmed that he was represented by
an attorney from the district public defender‟s office at trial. The Petitioner then testified
that he was hearing impaired, though he admitted that he had never been medically
diagnosed. When asked if he was able to hear everything that was said at his trial, the
Petitioner responded, “[n]o.” He claimed he only heard “probably 15 [percent] maybe, or
20 percent.” The Petitioner testified he complained to his trial counsel about not being
able to hear the trial and claimed she responded, “I‟m sorry.” He further testified that his
trial counsel did not attempt to get the Petitioner a hearing aid or any other type of
hearing apparatus to assist him.

        Following the Petitioner, the State called his trial counsel to testify. Trial counsel
stated that she had practiced law for thirty years, and she represented the Petitioner in his
2010 trial. She, along with another attorney, tried the Petitioner‟s case. Trial counsel
testified that she never had any difficulty communicating with the Petitioner throughout
her representation. She testified she visited him numerous times at the Criminal Justice
Center, and she claimed that during those visits, she never had any difficulty
communicating with the Petitioner. When asked if she had any difficulty communicating
with her client during the trial, trial counsel asserted, “No, [she] did not and [the
Petitioner] never asked for any kind of accommodation at the trial.” She acknowledged
that “there was one time during the trial when [the Petitioner] said he couldn‟t hear a
witness and [trial counsel] asked the judge if the witness could speak up[.]” She
explained the Petitioner then “indicated that that was fine and [they] had no other
discussions about [the Petitioner‟s] hearing.” Trial counsel testified that the Petitioner
did not mention having any other difficulty hearing throughout the trial. She consulted
with the Petitioner, and he gave input during the trial, according to trial counsel. Trial
counsel said this indicated to her that the Petitioner was able to hear what was occurring,
and she stated that “[she] believed at that time that for the most part [the Petitioner] was
hearing everything and [she] had no reason not to think so.”

       The post-conviction court subsequently denied the petition. In its order denying
the Petitioner relief, the post-conviction court stated as follows

2
 The State argues that the Petitioner has waived review of his claims because he failed to file timely a
petition for post-conviction relief. Here, the Petitioner states in his pro se petition that he presented the
petition to the appropriate prison authorities for mailing on October 16, 2013. See Tenn. R. Crim. P.
49(d) (the “prison mailbox rule” provides that papers filed by incarcerated pro se litigants may be
considered filed within the prescribed time if delivered to the appropriate prison authority for mailing
within the time allowed for filing). See also Tenn. S. Ct. R. 28, § 2(G). The Tennessee Supreme Court
denied review of the Petitioner‟s case on October 17, 2012. Because the Petitioner had one year from that
date to file his petition, we conclude that the Petitioner‟s petition is timely filed.


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       The Petitioner‟s claim that counsel failed to adequately communicate with
       him is simply specious at best. [Trial counsel] testified, she met with the
       Petitioner many times and did not have any issues communicating with the
       Petitioner in preparing for trial or during the trial. The [c]ourt finds [trial
       counsel‟s] testimony to be credible and truthful on this point. The [c]ourt
       does not believe the Petitioner was unable to communicate in his defense at
       trial.

On January 28, 2016, the Petitioner filed a notice of appeal.

                                        ANALYSIS

        On appeal, the Petitioner argues that the post-conviction court erred in finding that
the Petitioner received effective assistance of counsel. The Petitioner argues that he did
not receive effective assistance of counsel at his trial due to trial counsel‟s deficient
performance. Specifically, the Petitioner argues that he has a hearing problem and that
trial counsel failed to make reasonable accommodations. As a result, the Petitioner
contends he was unable to participate in his own trial because he could not adequately
hear what the witnesses said throughout the trial. The State responds that the Petitioner
did receive effective assistance of counsel.

        The Petitioner also claims that trial counsel failed to mount a meaningful defense
and failed to hold the State to its burden by not demanding a more detailed bill of
particulars. However, the Petitioner has waived our review of these issues. Rule 10 of
the Rules of the Court of Criminal Appeals of Tennessee addresses inadequate briefs.
See also Tenn. R. App. P. 27(a). It states, in relevant part, “Issues which are not
supported by argument, citation to authorities, or appropriate references to the record
shall be treated as waived in this court.” Tenn. Ct. Crim. App. R. 10(b). The Petitioner
simply states in the argument section of his brief that his counsel failed to adequately
prepare for his trial by not mounting a meaningful defense or requesting a more specific
bill of particulars. The Petitioner does not specify how his trial counsel failed to prepare
an appropriate defense, nor does he address the inadequacies of the bill of particulars.
Additionally, the Petitioner fails to explain how he was prejudiced at his trial. Therefore,
the Petitioner is not entitled to appellate review of these claims.

       Post-conviction relief is available when a “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.” Tenn. Code Ann. § 40-30-103.
Criminal defendants are constitutionally guaranteed the right to effective assistance of
counsel. Dellinger v. State, 279 S.W.3d 282, 293 (Tenn. 2009) (citing U.S. Const.
amend. VI; Cuyler v. Sullivan, 446 U.S. 335, 344 (1980)). When a claim of ineffective
assistance of counsel is made under the Sixth Amendment to the United States
Constitution, the burden is on the petitioner to show (1) that counsel‟s performance was

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deficient and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S.
668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). “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.”
Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). The Strickland standard has been
applied to the right to counsel under article I, section 9 of the Tennessee Constitution.
State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

        Deficient performance requires a showing that “counsel‟s representation fell
below an objective standard of reasonableness,” despite the fact that reviewing courts
“must indulge a strong presumption that counsel‟s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 688-89. Prejudice requires
proof of “a reasonable probability that, but for counsel‟s unprofessional errors, the result
of the proceeding would have been different.” Id. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. 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.” Id. at 689. “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).

       The burden in a post-conviction proceeding is on the petitioner to prove his
allegations of fact supporting his grounds for relief by clear and convincing evidence.
Tenn. Code Ann. § 40-30-110(f); see Dellinger, 279 S.W.3d at 293-94 (Tenn. 2009). 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 (Tenn. 2001). 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. Id. 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.

       Here, the Petitioner argues that trial counsel should have made a greater effort to
provide hearing accommodations to him during his trial so that he could have participated
in his own defense. We find nothing in the record that preponderates against the trial
court‟s finding that trial counsel‟s testimony was truthful with regards to the Petitioner‟s
ability to hear and communicate during his trial. Trial counsel explained that the
Petitioner gave input throughout his trial, and she communicated effectively with him
during the trial. We agree with the post-conviction court‟s conclusion that the Petitioner

                                            -5-
was unable to show either deficient performance or prejudice.      Accordingly, the
Petitioner is not entitled to relief on this issue.

                               CONCLUSION

      Based upon consideration of the foregoing and the record as a whole, the post-
conviction court‟s denial of the petition for post-conviction relief is affirmed.




                                                  __________________________________

                                                  D. KELLY THOMAS, JR., JUDGE




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