                                                                                         07/10/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs May 17, 2017

      COREY CORTEZ ABERNATHY v. STATE OF TENNESSEE

            Direct Appeal from the Criminal Court for Hamilton County
                    No. 287830        Barry A. Steelman, Judge



                           No. E2016-01258-CCA-R3-PC



In 2012, the Petitioner, Corey Cortez Abernathy, pleaded guilty to burglary of an
automobile and theft of property and agreed to a sentence of two years of incarceration.
In 2013, the Petitioner filed a petition for post-conviction relief based upon ineffective
assistance of counsel. The post-conviction court held a hearing on the petition and
denied relief. On appeal, the Petitioner alleges that he was deprived of the effective
assistance of counsel because his counsel failed to file a motion to suppress illegally
obtained evidence. We affirm the post-conviction court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and JOHN EVERETT WILLIAMS, J., joined.

Lorrie Miller, Chattanooga, Tennessee, for the appellant, Corey Cortez Abernathy.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; M. Neal Pinkston, District Attorney General; and Amanda G.
Morrison, Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION
                            I. Facts and Procedural History

        This case arises from the Petitioner’s burglary of an automobile. For this offense,
a Hamilton County grand jury indicted the Petitioner for burglary of an automobile and
theft of property.

                                     A. Guilty Plea
       Prior to entering a plea, the Petitioner complained that he had not received the
effective assistance of counsel from his attorney (“Counsel”) and asked to be appointed a
new attorney. The trial court denied his request and set a trial date. On that date, the trial
court informed the Petitioner that it had reconsidered his request to have a new attorney
appointed, but the Petitioner informed the trial court that a new attorney would not be
necessary and that he would like to resolve his case while represented by Counsel.
Counsel informed the trial court that it was her understanding that the Petitioner wished
to plead guilty. The Petitioner affirmed that was his decision.

       The State then recited the following facts as a basis for the trial court’s acceptance
of the Defendant’s guilty plea:

       [The] State’s proof would have been that on December the 2nd, [the
       Petitioner] burglarized a vehicle belonging to Derek Weaver, and took a
       laptop.

             And the State’s proof . . . [would have been] the police made contact
       on December the 9th with [the Petitioner] and he was found to be in
       possession of a GPS belonging to Dr. Tom Bibler, a former professor at
       UTC, and it was found that his car had been burglarized also.

       The trial court then asked if the Petitioner was entering a plea freely and
voluntarily, to which the Petitioner replied that he was. The trial court then sentenced the
Petitioner to two years for each conviction to be served concurrently in the Tennessee
Department of Correction.

                             B. Post-Conviction Proceedings

       The Petitioner filed a petition for post-conviction relief, pro se, alleging that: he
had received the ineffective assistance of counsel; his conviction was based on illegally
seized evidence; and he had entered his guilty plea unknowingly and involuntarily. The
post-conviction court appointed an attorney and subsequently held a hearing, during
which the following evidence was presented: the Petitioner testified that Counsel asked
to be removed from his case but that the trial court denied this request. The Petitioner
explained that his conflict with Counsel was that she recommended he plead guilty after
viewing video footage of him breaking into the car. The Petitioner disagreed that it was
him in the video. He also felt that there were grounds for suppression in his case, a
contention with which Counsel did not agree. The Petitioner testified that police
observed him with a backpack that contained the stolen laptop and that they “took it upon
themselves” to search the backpack without his permission and despite the fact that he

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did not claim ownership of it. He testified that Counsel told him that a motion to
suppress would not help his case. The Petitioner told Counsel that since she wanted him
to plead guilty, and he did not want to, that she should not represent him.

       On cross-examination, the Petitioner agreed that the stolen laptop was recovered
from his friend’s residence and that he was arrested there. He clarified that a police
officer saw him enter the friend’s residence and that, when he exited the residence
through the backdoor, the police questioned him about where he was going. The police
questioned him about a backpack he had been wearing earlier, and the Petitioner replied
that he had left the backpack inside the residence. The police asked for permission to
retrieve the backpack and search it, and the Petitioner replied that he could not give
permission to search something that was not his. The Petitioner was placed in the back of
the police car, and the police entered the residence; he agreed that he was not present
when the backpack was searched.

        The Petitioner agreed that he watched the video of the automobile burglary. He
agreed that he had prior convictions for burglary. The Petitioner recalled that he asked
Counsel to file a motion to dismiss the case based on the fact that he could not be
identified in the video recording. As for entering a guilty plea, the Petitioner stated that
he understood he had the right to a jury trial but would have lost; he knew this because he
had “been to trial before.” Counsel advised the Petitioner that it was best for him to plead
guilty. The Petitioner did not recall that, when next before the trial court, the trial court
offered to replace Counsel with a new attorney. The Petitioner did not remember
declining to have a new attorney appointed to his case.

       The Petitioner testified that Counsel conveyed the State’s offer to him and said it
was “the best thing going.” The Petitioner knew that the consequences would be a lot
worse if he went to trial and lost because of his prior felonies. The Petitioned maintained
that his case had grounds for suppression that Counsel never discussed with him,
however, he stated that he did not know about those grounds until after he elected to
plead guilty. If he had known “that my Fourth Amendment right had been violated,” he
would have not pleaded guilty.

       On redirect-examination, the Petitioner explained that he asked Counsel if his case
had any grounds for suppression, and she replied that it did not. Based on this advice, he
elected to plead guilty.

       Counsel testified that she was appointed to represent the Petitioner on two theft
and burglary cases. In this case, she received the discovery file and later the video
recordings taken of the automobile burglary. Together with the Petitioner she watched
the video recording. The State conveyed to Counsel an offer for the Petitioner to plead

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guilty and serve two years in prison with “determinant release,” and a second offer to
plead guilty with a two-year sentence suspended after eleven months and twenty-nine
days. Counsel felt that the second offer would result in shorter prison time for the
Petitioner.

       About the motion to dismiss, Counsel said that arose because of the determined
value of the stolen laptop. The Petitioner was of the opinion that the value was less than
the indicted charge, which Counsel explained was a question of fact for the jury. Counsel
then spoke with the Petitioner about the next step, but he remained focused on the motion
to dismiss and why Counsel would not file it. Counsel explained that it was not an
appropriate motion to file on that basis and the Petitioner “didn’t receive that very well.”
Counsel researched the value of comparable laptops and other variables.

       Counsel did not feel that any motions were necessary to file based on the video
recordings. She recalled that the recordings did not show the face of the burglar but said
that the man depicted was very similar to the Petitioner, particularly his stance and gait.
In her opinion, the man in the video was the Petitioner. Counsel agreed that she told the
Petitioner it was in his best interest to enter a plea “because if he had been convicted in
the appropriate range, he would have gotten more time” and “the evidence was sufficient
to convict him.”

       On cross-examination, Counsel reiterated that, in her opinion, a jury viewing the
video would see the similarities between the man depicted and the Petitioner, based on
the body build, shape, size, and the way the man walked. Counsel did not recall
discussing with the Petitioner, or him asking her to file, a motion to suppress evidence.
Her only recollection was the discussion about filing the motion to dismiss. Counsel
discussed with the Petitioner his options as far as pleading guilty, going to trial, and
trying to renegotiate the State’s offers.

        On the day the Petitioner pleaded guilty, Counsel spoke with him in private about
the plea offer. She did not recall a discussion about suppression of evidence. She opined
that there would not have been grounds for suppression in this case because the laptop
was found in someone else’s residence, a friend of the Petitioner, and thus she did not
think the Petitioner would have standing to challenge that search. Counsel recalled that
on the day the Petitioner pleaded guilty, the trial court offered to relieve Counsel as his
attorney, and he asked the trial court to let Counsel work out the case for him and resolve
it that day.

       At the conclusion of the hearing, the post-conviction court denied the petition,
stating the following:


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        From the post-conviction testimony, the Court gathers that, after the
[P]etitioner arrived in prison, he learned that there were grounds for
suppression of a laptop-containing backpack. He does not, however, claim
either backpack or laptop or the residence where they were found as his.
According to [C]ounsel, as a consequence, the [P]etitioner’s standing to
challenge the admissibility of the evidence is questionable. Although he
refers to the proof at the preliminary hearing, the record does not contain
and he does not describe that proof, and the [S]tate contends that there was
no such hearing.

       After viewing the video with [C]ounsel, the [Petitioner] remarked
that the perpetrator’s nose, eyes, ears, and hair cannot be seen, the color of
his clothes can barely be seen, and he “he leaves the car without a backpack
or laptop.” It appeared, however, that “something had been put in his
clothing, down his pants . . . “

       The [Petitioner], who had two prior convictions for burglary, know
that he could go to trial and had done so before. . . . . Although he did not
“have anything to do with the ranges,” he was aware of the possibility of a
longer sentence on a conviction after trial.

       Counsel mailed paper discovery to the [P]etitioner. She and her
assistant viewed the video recording with him and explained that it looked
like him, meaning not his face but his stance, gait, build, shape, and size.

        Counsel does not recall any discussion about pre-trial motions,
including motions to suppress, other than a motion to dismiss. . . . . The
[P]etitioner was arrested on a warrant and found in possession of a stolen
GPS, which was part of the other, not the laptop, case. The laptop was
found in a residence and not taken from the [P]etitioner’s person. Counsel
researched the value of the laptop on the internet.

       Counsel thoroughly discussed with the [P]etitioner his options:
going to trial, accepting the plea offer, or renegotiating. She reviewed the
plea papers with him several times. Because the [P]etitioner had more than
one conviction, she did not think that he should have been a Range I
offender. She recommended that he accept the plea offer.

       ....

       The [P]etitioner argues that [C]ounsel did not file a motion to

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suppress or dismiss, despite the premature seizure of evidence, and in one
case, insufficient video evidence of the identity of the perpetrator. With
respect to the motion to suppress it now appears that he faults [C]ounsel for
not challenging the seizure of the laptop-containing backpack. The laptop,
which he did not claim, was seized in the search of a backpack, which he
did not claim, in a residence that was not his. . . . . Considering there is no
evidence that the [P]etitioner had a reasonable expectation of privacy in the
residence, the backpack or the laptop, the Court finds neither deficiency nor
prejudice in [C]ounsel’s failure to file a motion to suppress the seizure of
the laptop-containing backpack from the residence.

       As for the motion to dismiss that a surveillance recording did not
include a clear view of the perpetrator’s face does not mean that the
recording did not provide other clues to the perpetrator’s identity. Nor does
it mean that other, sufficient evidence of identity did not exist. In any
event, it is not ground [sic] for dismissal. . . . Considering that there was
no ground for a motion to dismiss, the Court finds neither deficiency nor
prejudice in [C]ounsel’s failure to file a motion to dismiss.

        The [P]etitioner alleges that his counsel, though she did file a motion
to withdraw, did not succeed in withdrawing, despite a conflict of interest.
There is no evidence of a conflict of interest on [C]ounsel’s part. In
addition, exhibits 1 and 2, the transcripts of the hearing on the motion to
withdraw and the pleas, reflect that, after consultation with [C]ounsel at the
[P]etitioner’s request, instead of accepting the Court’s offer to relieve
[C]ounsel and appoint substitute counsel, the [P]etitioner, satisfied with the
plea agreement and [C]ounsel, proceeded with the entry of the pleas. The
Court therefore finds neither deficiency nor prejudice in [C]ounsel’s
performance in this respect.

        The [P]etitioner claims that his pleas were involuntary or
unintelligent. . . . . in essence . . . because he did not receive the effective
assistance of counsel or there was an insufficient factual basis for one or
both pleas. Almost all of the circumstances of the pleas, however, suggest
that they were voluntary and intelligent.

       The [P]etitioner is intelligent, literate, and assertive. He is familiar
with criminal proceedings, having pled guilty and, by his own account, not
guilty before. He had competent counsel and opportunity to confer with
[C]ounsel about his alternatives. He was aware of the charges and evidence
against him, including the weaknesses in the evidence against him, the

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       perpetrator’s unidentifiable face, the non-appearance of the backpack or
       laptop in the video recording, and the overvaluation of the laptop. He does
       not dispute that he understood his rights. He was under no apparent
       pressure to plead guilty but was eager to do so. Even if he did not
       understand sentence ranges, he did understand that the agreed sentences
       were more favorable than the possible sentences on conviction after a trial.
       He pled guilty to avoid a longer sentence after trial, which, with an
       apparently sufficient factual basis for the pleas and two prior burglary
       convictions, was more than an inconsequential possibility. . . . . The Court
       therefore finds that the pleas were voluntary and intelligent.


       It is from the post-conviction court’s judgment that the Petitioner now appeals.

                                       II. Analysis

        The Petitioner contends on appeal that the post-conviction court erred when it
denied his petition because he received the ineffective assistance of counsel when
Counsel failed to file a motion to suppress and failed to advise the Petitioner that he had
an expectation of privacy in the backpack and its contents that was found and searched in
his friend’s residence. The State responds that Counsel’s representation of the Petitioner
was not ineffective when she did not file a motion to suppress the evidence seized from a
search of the backpack. The State asserts that the Petitioner disclaimed interest and
ownership in the backpack. This, the State claims, was sufficient evidence that the
Petitioner abandoned any reasonable expectation of privacy in the backpack and thus, he
cannot show that the proceedings would have concluded differently had Counsel filed a
motion to suppress the backpack evidence. We agree with the State.

       In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional
right. T.C.A. § 40-30-103 (2014). The petitioner bears the burden of proving factual
allegations in the petition for post-conviction relief by clear and convincing evidence.
T.C.A. § 40-30-110(f) (2014). The post-conviction court’s findings of fact are conclusive
on appeal unless the evidence preponderates against it. Fields v. State, 40 S.W.3d 450,
456-57 (Tenn. 2001). Upon review, this Court will not re-weigh or re-evaluate the
evidence below; all questions concerning the credibility of witnesses, the weight and
value to be given their testimony and the factual issues raised by the evidence are to be
resolved by the trial judge, not the appellate courts. Momon v. State, 18 S.W.3d 152, 156
(Tenn. 1999); Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). A post-conviction
court’s conclusions of law, however, are subject to a purely de novo review by this Court,
with no presumption of correctness. Id. at 457.

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       The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9, of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The
following two-prong test directs a court’s evaluation of a claim for ineffectiveness:

      First, the [petitioner] must show that counsel’s performance was deficient.
      This requires showing that counsel made errors so serious that counsel was
      not functioning as the “counsel” guaranteed the [petitioner] by the Sixth
      Amendment. Second, the [petitioner] must show that the deficient
      performance prejudiced the defense. This requires showing that counsel’s
      errors were so serious as to deprive the [petitioner] of a fair trial, a trial
      whose result is reliable. Unless a [petitioner] makes both showings, it
      cannot be said that the conviction or death sentence resulted from a
      breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Melson, 772
S.W.2d 417, 419 (Tenn. 1989).

       In reviewing a claim of ineffective assistance of counsel, this Court must
determine whether the advice given or services rendered by the attorney are within the
range of competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at
936. To prevail on a claim of ineffective assistance of counsel, “a petitioner must show
that counsel’s representation fell below an objective standard of reasonableness.” House
v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369
(Tenn. 1996)). When evaluating an ineffective assistance of counsel claim, the reviewing
court should judge the attorney’s performance within the context of the case as a whole,
taking into account all relevant circumstances. Strickland, 466 U.S. at 690; State v.
Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court should
avoid the “distorting effects of hindsight” and “judge the reasonableness of counsel’s
challenged conduct on the facts of the particular case, viewed as of the time of counsel’s
conduct.” Strickland, 466 U.S. at 689-90. In doing so, the reviewing court must be
highly deferential and “should indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462.

       Finally, we note that a defendant in a criminal case is not entitled to perfect
representation, only constitutionally adequate representation. Denton v. State, 945
S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of
ineffective assistance of counsel, ‘we address not what is prudent or appropriate, but only
what is constitutionally compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting

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United States v. Cronic, 466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed
to have been ineffective merely because a different procedure or strategy might have
produced a different result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim.
App. 1980). “The fact that a particular strategy or tactic failed or hurt the defense, does
not, standing alone, establish unreasonable representation. However, deference to
matters of strategy and tactical choices applies only if the choices are informed ones
based upon adequate preparation.” House, 44 S.W.3d at 515 (quoting Goad, 938 S.W.2d
at 369).

        If the petitioner shows that counsel’s representation fell below a reasonable
standard, then the petitioner must satisfy the prejudice prong of the Strickland test by
demonstrating there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. Strickland, 466 U.S. at
694; Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). This reasonable probability
must be “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at
694; Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994).

       On the matter of the failure of Counsel to file a motion to suppress at trial, the
post-conviction court found that, because the Petitioner claimed that the backpack was
not his and that it was inside a residence he did not own or occupy, the Petitioner had no
reasonable expectation of privacy in the residence, the backpack inside, or the contents of
the backpack. Thus, the post-conviction court found that Counsel was not deficient and
that the Petitioner suffered no prejudice when Counsel did not file a motion to suppress
the evidence seized from the backpack.

       We conclude that the evidence does not preponderate against the trial court’s
findings. The evidence presented was that the laptop was found in someone else’s
residence, a friend of the Petitioner, and thus Counsel felt that the Petitioner lacked
standing to challenge that search. The Petitioner also testified that he left the backpack
inside a friend’s residence and when asked by the police about the backpack, he
disclaimed ownership. “[W]hen a person disclaims any interest in the premises or
possessions searched, or in the article seized, he can not question the legality of the
search.” Miller v. State, 520 S.W.2d 729, 734 (Tenn. 1975) (quoting Neal v. State, 334
S.W.2d 731 (Tenn. 1960). As such, Counsel was not deficient for failing to file a motion
to suppress under these circumstances. Accordingly, we conclude that the Petitioner is
not entitled to relief.

                                     III. Conclusion

       In accordance with the aforementioned reasoning and authorities, we affirm the
post-conviction court’s judgment.

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     ________________________________
      ROBERT W. WEDEMEYER, JUDGE




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