        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs March 5, 2014

                RONNIE WOODALL v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Shelby County
                        No. 04-01377     W. Otis Higgs, Judge




                   No. W2012-02005-CCA-R3-PC - Filed May 5, 2014


The petitioner, Ronnie Woodall, appeals the denial of his petition for post-conviction relief,
which challenged his Shelby County Criminal Court jury conviction of rape of a child. In
this appeal, the petitioner contends that he was deprived of the effective assistance of counsel
at trial, that the State failed to disclose favorable evidence, and that the post-conviction court
erred by failing to address each of the issues raised in the petition for post-conviction relief.
Discerning no error, we affirm.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and R OBERT W. W EDEMEYER, JJ., joined.

Ronnie Woodall, Pikeville, Tennessee, pro se (on appeal); and Juni Ganguli, Memphis,
Tennessee (at hearing), for the appellant, Ronnie Woodall.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and David Zak, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                           OPINION

               A Shelby County Criminal Court jury convicted the petitioner of one count of
rape of a child for his 2002 assault on the 12-year-old victim. At the defendant’s trial, the
victim testified that the defendant, her father, “got on top of her when she tried to get out of
the bed” and “then placed his penis in her vagina and did not use a condom.” State v. Ronnie
Woodall, No. W2004-02358-CCA-R3-CD, slip op. at 1 (Tenn. Crim. App., Jackson, Sept.
12, 2005), perm. app. denied (Tenn. Feb. 6, 2006). The victim reported that the defendant
gave her $5.00 and a necklace after the incident and warned her not to tell anyone. See id.,
slip op. at 2. The victim reported the rape to her mother as soon as her mother returned home
from work, and the victim’s mother took her to the hospital. According to the victim’s
mother, when confronted about the allegations, the defendant said, “‘I’m sorry, I didn’t mean
to do that.’” Id. The forensic examination of the victim revealed a “hematoma to the hymen,
indicative of unwanted sexual penetration” that had occurred within the 24 hours before the
examination. Id. During an interview with the police, the defendant admitted having sex
with the victim and offering her gifts. The defendant testified that, due to his level of
intoxication, he had no recollection of having sex with the victim. Id., slip op. at 3.

               This court affirmed the petitioner’s conviction and accompanying 22-year
sentence on direct appeal. Id., slip op. at 1, 8. Following the denial of his application for
permission to appeal to the supreme court, the petitioner filed a timely petition for post-
conviction relief, alleging, among other things, that he was deprived of the effective
assistance of counsel both before and during the trial; that his 22-year sentence is
unconstitutional; that his sentence was excessive; and that his conviction was the product of
a coerced confession and the use of illegal evidence. The petitioner, with the aid of counsel,
also filed two amended petitions that clarified his claim of ineffective assistance of counsel
and that added a claim that the State failed to disclose exculpatory evidence. The petitioner
also moved for deoxyribonucleic acid (“DNA”) testing of evidence collected during the
victim’s forensic examination pursuant to Tennessee Code Annotated sections 40-30-303 and
40-30-304.

               At the July 2, 2012 evidentiary hearing, post-conviction counsel effectively
abandoned the majority of the petitioner’s claims for post-conviction relief and alleged only
that the petitioner had been deprived of the effective assistance of counsel, claiming
specifically that counsel failed to adequately inform him of the strength of the State’s case
and that counsel’s failure to “develop[] any sort of relationship with him” led counsel to
erroneously encourage the petitioner to testify at trial. Counsel stated that it was the
petitioner’s opinion that had he been appropriately apprised of the strength of the State’s case
he would have pleaded guilty and that had counsel developed an adequate relationship with
the petitioner he would have been aware that the petitioner would fare poorly during cross-
examination.

               Trial counsel testified that the petitioner told him that the petitioner had no
recollection of either the rape or his confession because he was so intoxicated on cocaine and
alcohol. Counsel noted that the petitioner’s three-page confession contained great detail
about the assault. Counsel stated that despite his claiming to have been in a drug-induced
blackout from before the assault until after he gave his confession, the petitioner was able
to provide great detail about other events that transpired during that time frame. Counsel said

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that he “had no expert to back up [the petitioner’s] story.” He explained that the expert who
conducted the petitioner’s forensic evaluation explained that if the petitioner had truly been
in a blackout, he would have forgotten the entire week and “wouldn’t just forget bits and
pieces of it that are convenient to forget.” Counsel testified that he explained to the
petitioner that if the petitioner’s defense was to be that the petitioner was “in a blackout”
when the offense occurred, that the petitioner would need to testify to get that fact before the
jury.

              Counsel recalled that he managed to get the State to accept a plea agreement
that would have resulted in the petitioner’s serving a 13.5-year sentence and that he
counseled the petitioner to accept the agreement based upon the strength of the State’s case.
Counsel recalled that the petitioner did not want to accept the offer because he did not “know
if it happened or not” and because he did not “think he would” have sex with his daughter.
Counsel said that he stressed to the petitioner that a jury would be repulsed by the facts of
the case. Counsel stated that he also emphasized to the petitioner that there really was no
viable defense to the charges. Despite counsel’s exhortations, the petitioner decided to reject
the offer.

             Counsel said that as part of his trial preparation, he subjected the petitioner to
mock cross-examination so that the petitioner would “have some idea of what [he was] going
to come up against.” He stated that he had no idea that the petitioner would testify that he
“could have” committed the rape of the victim.

                The petitioner testified in the evidentiary hearing that his statement to the
police wherein he admitted having sex with the victim was “false.” He insisted that he did
not tell the police that he had raped the victim and that the police officers had lied. The
petitioner also insisted that he never told his trial counsel that he was “in a blackout” when
both the offense and the statement occurred. The petitioner said that counsel failed to inform
him of the potential punishment for a conviction of rape of a child until “like a week or two
before trial or something.” The petitioner also said that he “refused to testify” until “the last
minute,” when counsel asked him to testify. The petitioner maintained that counsel did not
prepare him to testify and that counsel’s testimony otherwise was a lie. He insisted that
counsel’s failure to prepare him to testify resulted in his performing poorly during cross-
examination.

               During cross-examination, the petitioner claimed that trial counsel performed
deficiently by failing to “call any of [his] witnesses” and by failing to object to things “that
the prosecutor was doing wrong in the trial on my behalf.” The petitioner said that he and
the trial judge had “never seen eye to eye on things” and that they “had problems” that led
to the trial judge’s being unable to do his job fairly. The petitioner acknowledged that

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counsel could not prepare him to appear truthful on the stand when he was not, in fact, being
truthful.

                The post-conviction court denied relief via written order, concluding that the
petitioner had failed to establish his claims by clear and convincing evidence. In the written
order, the post-conviction court addressed each of the claims raised in the written petitions
for relief. Because it is our view that the petitioner abandoned all claims except those
addressed at the evidentiary hearing, we confine our summary of the post-conviction court’s
order to those claims. With regard to the petitioner’s claim that counsel failed to adequately
explain the ramifications of rejecting the plea offer, the post-conviction court accredited
counsel’s testimony that he thoroughly explained to the petitioner the potential punishment
he faced should he be convicted at trial and how the facts of the case would be perceived by
a jury. With regard to the petitioner’s claim that counsel should not have permitted him to
testify at trial, the post-conviction court found that although the petitioner “realizes, in
retrospect, that his choice [to testify] may not have been the best one is not grounds for an
ineffective assistance of counsel claim.”

                In this appeal, the petitioner, now proceeding pro se at his own request,
reiterates his claim of ineffective assistance of counsel, adds a claim that the State withheld
favorable evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), and claims that
the post-conviction court erred by failing to address all of the claims raised. The State asserts
that the post-conviction court properly denied relief.

              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 (2006). A post-conviction petitioner
bears the burden of proving his or her allegations by clear and convincing evidence. Id. §
40-30-110(f). On appeal, the post-conviction court’s findings of fact are conclusive 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).

                                    I. Brady v. Maryland

               The petitioner claims entitlement to post-conviction relief on grounds that the
State violated the requirements of Brady v. Maryland, 373 U.S. 83 (1963), when it failed to
“‘surrender the DNA evidence to him during pretrial discovery request’[] nor during this
court’s direct appellate review[] of his conviction and sentence.” The petitioner

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acknowledges that his post-conviction counsel failed to address this issue at the evidentiary
hearing. The State asserts that because the petitioner failed to present any evidence to
support his claim at the evidentiary hearing, the post-conviction court correctly ruled that the
petitioner had failed to establish entitlement to post-conviction relief on this ground.

               The constitutional right to a fair trial imposes upon the State “duties consistent
with the[] sovereign obligation to ensure ‘that justice shall be done’ in all criminal
prosecutions.” Cone v. Bell, 556 U.S. 449, 451 (2009) (quoting United States v. Agurs, 427
U.S. 97, 111 (1976) (citation and internal quotation marks omitted)). In Brady v. Maryland,
373 U.S. 83 (1963), the United States Supreme Court held that “suppression by the
prosecution of evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution.” Id. at 87. “Evidence ‘favorable to an accused’ includes evidence
deemed to be exculpatory in nature and evidence that could be used to impeach the [S]tate’s
witnesses.” Johnson v. State, 38 S.W.3d 52, 55-56 (Tenn. 2001) (citing State v. Walker, 910
S.W.2d 381, 389 (Tenn. 1995); State v. Copeland, 983 S.W.2d 703, 706 (Tenn. Crim. App.
1998); United States v. Bagley, 473 U.S. 667, 676 (1985)). The duty to disclose exculpatory
evidence extends to all “favorable information” irrespective of whether the evidence is
admissible at trial. State v. Robinson, 146 S.W.3d 469, 512 (Tenn. 2004) (appendix);
Johnson, 38 S.W.3d at 56. Brady and its progeny create in the “individual prosecutor . . . a
duty to learn of any favorable evidence known to the others acting on the government’s
behalf in the case.” Kyles v. Whitley, 514 U.S. 419, 437 (1995).

              To prove a Brady violation, a defendant must demonstrate:

               (1) that he requested the information (unless the evidence is
               obviously exculpatory, in which case the [S]tate is bound to
               release the information whether requested or not),

               (2) that the State suppressed the information,

               (3) that the information was favorable to the defendant, and

               (4) that the information was material.

Johnson, 38 S.W.3d at 56 (citing State v. Edgin, 902 S.W.2d 387, 390 (Tenn. 1995); Walker,
910 S.W.2d at 389); see also Strickler v. Greene, 527 U.S. 263, 281-82 (1999) (“There are
three components of a true Brady violation: The evidence at issue must be favorable to the
accused, either because it is exculpatory, or because it is impeaching; that evidence must
have been suppressed by the State, either willfully or inadvertently; and prejudice must have

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ensued.”). The evidence is deemed material if “there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
different.” Bagley, 473 U.S. at 682.

              The question is not whether the defendant would more likely
              than not have received a different verdict with the evidence, but
              whether in its absence he received a fair trial, understood as a
              trial resulting in a verdict worthy of confidence. A ‘reasonable
              probability’ of a different result is accordingly shown when the
              government’s evidentiary suppression ‘undermines confidence
              in the outcome of the trial.’

Kyles, 514 U.S. at 434 (quoting Bagley, 473 U.S. at 678). Plainly stated, establishing
materiality requires a “showing that the favorable evidence could reasonably be taken to put
the whole case in such a different light as to undermine confidence in the verdict.” Kyles,
514 U.S. at 435; see Johnson, 38 S.W.3d at 58.

               As the State points out, and the petitioner acknowledges, the petitioner failed
to present any evidence to support his claim that the State withheld potentially exculpatory
DNA evidence. The petitioner’s failure to present any proof to support this claim necessarily
means that the petitioner failed to prove the claim by clear and convincing evidence, see
T.C.A. § 40-30-110(f), and would, therefore, not be entitled to post-conviction relief on this
ground. Consequently, the ruling of the post-conviction court that the petitioner had failed
to establish his Brady claim by clear and convincing evidence was correct.

               Although the petitioner claims that his post-conviction counsel performed
deficiently by failing to raise this claim at the evidentiary hearing, this claim does not avail
him any relief. “[B]ecause there is no constitutional right to counsel in post-conviction
proceedings, we have held that ‘there is no constitutional right to effective assistance of
counsel in post-conviction proceedings.’” Stokes v. State, 146 S.W.3d 56, 60 (Tenn. 2004)
(quoting House v. State, 911 S.W.2d 705, 712 (Tenn. 1995)). “The United States Supreme
Court has likewise held that the Fourteenth Amendment’s right to counsel, and therefore
right to effective assistance of counsel, only applies through the first appeal as of right.”
Stokes, 146 S.W.3d at 60 (citing Douglas v. California, 372 U.S. 353, 357 (1963)).

                            II. Ineffective Assistance of Counsel

              The petitioner contends that his trial counsel performed deficiently by failing
to obtain and utilize the results of DNA testing by the State, by failing to adequately advise
him to accept the State’s plea offer, and by “allowing” the petitioner to testify at trial.

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                To establish entitlement to post-conviction relief via a claim of ineffective
assistance of counsel, the post-conviction petitioner must affirmatively establish first 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 second that his 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.” Id. 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 reviewing a claim of ineffective assistance of counsel, 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).

             In our view, the record supports the decision of the post-conviction court
denying post-conviction relief because the petitioner failed to establish any of his claims by
clear and convincing evidence.

                        A. Failure to Obtain Exculpatory Material

               In a corollary to his Brady claim, the petitioner asserts that his trial counsel
performed deficiently by failing to obtain that DNA evidence that the State allegedly
withheld. The petitioner contends that although “counsel knew of this” evidence and “knew
that such evidence” could have changed the outcome of the trial, counsel failed to utilize the
evidence to the petitioner’s advantage. Again, the petitioner failed to present any proof in
support of this claim at the evidentiary hearing and, as such, has failed to prove his claim by
clear and convincing evidence.

                                        B. Plea Offer

              Although the petitioner contends that counsel failed to adequately advise him
to accept the plea offer from the State, counsel’s accredited testimony belies this claim.
Counsel testified that he worked diligently to secure a plea offer from the State that included

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a Range I, 13.5-year sentence. Counsel communicated the offer to the petitioner, who was
hesitant to accept and asked for more time to consider the offer and consult with his family.
Counsel then secured the State’s agreement to leave the offer open to allow the petitioner
sufficient time to consider the offer. Counsel testified that he informed the petitioner that the
petitioner faced a lengthy prison sentence if convicted at trial and that a jury would view the
facts of the petitioner’s case as repugnant. Counsel said that he also informed the petitioner
that proceeding with the petitioner’s “blackout” defense would be “an uphill battle.” Under
these circumstances, we cannot say that counsel performed deficiently. The decision to reject
the plea offer was the petitioner’s alone, and he alone must bear the consequences of that
choice.

                                      C. Decision to Testify

               Finally, the petitioner claims that trial counsel performed deficiently by
“allowing [the p]etitioner to testify” at trial. Initially, we note that the decision to testify, like
the decision to accept or reject a plea offer from the State, lies solely with the accused. See
generally State v. Momon, 18 S.W.3d 152 (1999). Thus, it was not counsel’s decision to
permit or deny the petitioner the opportunity to testify in his own defense. Counsel’s
accredited testimony established that he encouraged the petitioner to testify because counsel
believed that to be the only way to present the petitioner’s “blackout” defense in light of the
fact that he “had no expert to back up [the petitioner’s] story.” Counsel stated that he
prepared the petitioner to testify at trial and that his preparation included subjecting the
petitioner to mock cross-examination. Although the petitioner claims that counsel failed to
follow the requirements of Momon, the post-conviction court observed that the petitioner
participated in a Momon colloquy before taking the stand and agreed that he had made the
decision to testify of his own accord. We find apt the post-conviction court’s conclusion that
the petitioner’s realization “in retrospect, that his choice may not have been the best one is
not grounds for an ineffective assistance of counsel claim.”

                                            Conclusion

             Because the petitioner has failed to establish any of his claims by clear and
convincing evidence, we affirm the judgment of the post-conviction court.


                                                       _________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE




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