                                                                                                 04/30/2018
           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                                   January 3, 2018 Session

                  MELVIN BRAISON v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Shelby County
                     No. 15-00611      James M. Lammey, Judge
                       ___________________________________

                             No. W2017-00297-CCA-R3-PC
                         ___________________________________


The Petitioner, Melvin Braison, appeals the denial of his petition for post-conviction
relief, arguing that he was denied the effective assistance of counsel and his guilty pleas
were therefore unknowing and involuntary. 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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and CAMILLE R. MCMULLEN, JJ., joined.

Kirk W. Stewart, Memphis, Tennessee, for the appellant, Melvin Braison.

Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Tyler Parks, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                           OPINION

                                            FACTS

       This case arises out of the Petitioner’s participation with his brother, Reggie
       1
Taylor , and a third man, Leotha Hampton, in two aggravated robberies in Memphis that
occurred within thirty minutes of each other on October 7, 2014. Mr. Hampton was shot
by the victim of the second robbery and died from his injuries. The Petitioner and his
brother were arrested after the police found the Petitioner reversing his vehicle, in which
the Petitioner’s brother and Mr. Hampton were passengers, down the street on which the
       1
         Although the prosecutor at the guilty plea hearing referred to the Petitioner’s brother as
“Reginald Taylor,” we use the name as it appears in the indictment.
second robbery occurred. The victims’ possessions were inside the Petitioner’s vehicle,
and the Petitioner’s brother gave a statement implicating the Petitioner in both robberies.
On February 5, 2015, the Petitioner and Mr. Taylor were indicted together for the
aggravated robbery of Charles Bridgewater, the attempted aggravated robbery of
Cassandra Bradford, and the aggravated robbery of Durrell Davis.

        On November 2, 2015, the Petitioner pled guilty to two counts of aggravated
robbery in exchange for concurrent terms of 7.2 years at 85% for each count. Pursuant to
the terms of his negotiated plea, the criminal attempt count of the indictment was nolle
prosequied. At the guilty plea hearing, the prosecutor recited the following factual basis
for the pleas:

              Had these matters gone to trial, the [S]tate’s proof would have been
      that on October 7th, 2014, Memphis police officers received a robbery call
      to Jackson Avenue and Speed (phonetic) here in Shelby County. Upon
      arrival, officers spoke to the victim who advised that after they left – the
      name of the bar is, quote, Our Bar, unquote. A man approached him. The
      suspect said, “Give me all that money you old man.” The victim stated that
      the suspect had a black handgun. He stated that he gave the suspect his
      billfold containing a hundred dollars, his credit cards, personal I.D., and a
      cell phone.

             This victim stated that the robber demanded – the female victim
      stated that the other robber demanded her purse, and she told him she did
      not have a purse. [The robber] grabbed the gold chain from around the
      male victim’s neck and ran across the street.

              On the same night of October 7th, 2014, this is approximately 1:00
      o’clock in the morning, this other victim was leaving the same [b]ar with
      two friends. The victim got into his vehicle and drove around the corner to
      his home [on] . . . North Claybrook. As the victim started to get out of his
      vehicle, he saw two suspects rushing up to his car with a handgun. As the
      victim attempted to run away, the suspects – one of the suspects, rather,
      fired two or three shots at him hitting him in the right leg causing him to
      fall. The suspects ran up to the victim, pulled – the victim pulled his own
      pistol and fired at the suspects. Once the suspect, later identified as Leotha
      Hampton, collapsed on the street, the other suspect, Reginald Taylor[,] ran
      back to the vehicle.
              Officers were called to the area. They found a 2000 Mercedes Benz
      driving in reverse down Claybrook. Officers stopped the vehicle after a
      short chase and arrested [the Petitioner], his passenger, and found Mr.
                                           -2-
       Leotha Hampton lying wounded in the backseat. [Mr.] Hampton later died
       of his injuries at The Med.

               Reginald Taylor later gave a statement to the investigators stating
       that all three of them had participate[d] in the robberies. The investigators
       found the victims’ stolen credit cards and I.D. in this vehicle.

        On December 18, 2015, the Petitioner filed a pro se petition for post-conviction
relief in which he raised a number of claims, including ineffective assistance of counsel.
Following the appointment of post-conviction counsel, the Petitioner filed an amended
petition in which he alleged that counsel was deficient in his representation for, among
other things: failing to adequately meet with the Petitioner or inform him of the evidence
against him, the defense strategy, or the work counsel was performing on the case; failing
to adequately investigate the case, including failing to visit the crime scene, locate and
interview character witnesses, or interview the State’s witnesses; and failing to file
appropriate motions “to safeguard due process and challenge the evidence and charges.”
The Petitioner alleged that were it not for counsel’s deficiencies, he would not have pled
guilty.

       At the January 17, 2017 evidentiary hearing, the Petitioner’s trial counsel, who
was retained by the Petitioner’s family, testified that he represented the Petitioner
throughout the entire case, starting with the preliminary hearing. He said he met with the
Petitioner on at least five separate occasions, during which he reviewed the discovery he
received from the State and discussed with the Petitioner the evidence against him, the
pros and cons of his case, and the potential sentences he faced if convicted of all the
offenses at trial.

       Trial counsel was confident that he and the Petitioner discussed Mr. Taylor’s
statement “in quite some detail” but had no specific memory of whether they “got into
detail” about whether Mr. Taylor’s statement would have been excluded. He said,
however, that it appeared that the State was not going to sever the offenses “and, of
course, that issue would have been brought up as to whether or not there was a Bruton2
problem with regards to [the Petitioner’s] brother’s statement.” Counsel agreed that he
and the Petitioner were able to talk with both Mr. Taylor and Mr. Taylor’s counsel and
that Mr. Taylor said that he would not testify against the Petitioner. Trial counsel
acknowledged that the trial court denied his request to be relieved of representation of the
Petitioner. He recalled that he made the request because the Petitioner’s parents stopped

       2
          See Bruton v. United States, 391 U.S. 123, 136 (1968) (holding that a defendant is
deprived of his Confrontation Clause rights when a non-testifying co-defendant’s confession that
incriminates defendant is used at their joint trial).
                                             -3-
paying the Petitioner’s bill but said that he did not blame the Petitioner and that it did not
prevent him from fulfilling his obligations as trial counsel.

       On cross-examination, trial counsel testified that he had been practicing criminal
law for twenty-four or twenty-five years, had handled thousands of criminal cases, and
had tried every sort of criminal case “from a DUI to capital murder.” Had the Petitioner
not entered guilty pleas, he would have visited the crime scene and investigated and
interviewed potential witnesses as necessary. He probably would not, however, have
talked to the victims because none identified the Petitioner or claimed to have seen him.
Trial counsel stated that the Petitioner’s initial story to police was that he and his brother
had been riding down the street when they encountered and picked up from the middle of
the road a man who had been shot.

       Trial counsel testified that he discussed the plea agreement with the Petitioner at
length, went over the entire trial process with him, and informed him of the rights he
would be waiving by pleading guilty. He told the Petitioner that the State’s offer, which
involved concurrent minimum sentences for the offenses, was a good deal, but he also
made it clear that the decision was the Petitioner’s and that he would fight to win the case
if the Petitioner opted for trial. In his opinion, the Petitioner understood the entire
process and what he was doing by pleading guilty.

        In response to questions from the post-conviction court, trial counsel testified that
the Petitioner never denied driving the vehicle. He said he believed the State could have
easily convicted the Petitioner without Mr. Taylor’s statement given that the Petitioner’s
behavior of fleeing from the police was inconsistent with his account of having
innocently picked up a gunshot victim from the street. Trial counsel was fairly certain he
advised the Petitioner that, based on his prior experience, the trial court would more than
likely sentence the Petitioner “to consecutive time for each victim” if the Petitioner were
convicted at trial of the indicted offenses.

       Reggie Taylor testified that he told trial counsel that he had called the Petitioner to
help him get to the hospital after he realized that he had been shot and that the Petitioner
had absolutely no involvement in the crimes. He suggested that the statement he gave to
police officers implicating the Petitioner was unreliable given the circumstances under
which it was made, explaining that it arose from his responses to officers’ questions as
they were taking him from the hospital on the day following his gunshot injury. On
cross-examination, Mr. Taylor acknowledged that he signed his statement and initialed
each page after being advised of his rights. He claimed, however, that the statement
introduced as an exhibit to the hearing contained more questions, and different questions
and answers, than the one that he had signed.

                                            -4-
       The Petitioner testified on direct and cross-examination that trial counsel never
met with him other than during the times he appeared at court, never shared discovery
with him, and never discussed the case other than to ask about the payment of his fees
and to tell him that he had an eighty percent chance of being convicted at trial because of
Mr. Taylor’s statement. He claimed that the only motion trial counsel filed on his behalf
was a motion to sever, which was denied by the trial court. He said he was unaware of
counsel’s having filed a motion for exculpatory evidence, a motion for the State to reveal
any agreements between the State and prosecution witnesses, and a motion for discovery
because counsel never told him about them.

       The Petitioner further testified that if he had known of the possibility of Mr.
Taylor’s statement being excluded, he would not have pled guilty but instead would have
proceeded to trial. He acknowledged he had entered guilty pleas in a number of earlier
cases and that he answered affirmatively when asked by the trial court in this case if he
understood his rights, had discussed the plea agreement with counsel, and wished to
plead guilty. He claimed he misunderstood the trial court’s questions and said that he did
not ask the trial court any questions himself, despite his confusion, because the trial court
had not been amenable to his earlier complaints about trial counsel’s performance and the
conflicts he was experiencing with counsel.

        At the conclusion of the hearing, the post-conviction court, which had also
presided over the guilty plea hearing, noted that it had advised the Petitioner of all the
constitutional rights he was waiving by pleading guilty and received the Petitioner’s
assurances that he understood those rights, understood what he was doing by pleading
guilty, and was entering his pleas freely and voluntarily. The post-conviction specifically
found that neither the Petitioner nor Mr. Taylor were truthful in their testimony at the
hearing. The court also noted that the Petitioner received an extraordinarily favorable
sentence as a result of the plea bargain agreement and concluded that the Petitioner failed
to show that counsel was deficient in his performance or that the Petitioner was
“prejudiced in any respect.” Accordingly, the post-conviction denied the petition. On
January 17, 2017, the post-conviction court entered an order in which it incorporated by
reference its oral findings of fact and conclusions of law from the evidentiary hearing.
This appeal followed.

                                       ANALYSIS

        The Petitioner argues on appeal that his guilty pleas were not entered knowingly,
voluntarily, or intelligently due to trial counsel’s ineffective assistance in not informing
him that Mr. Taylor’s statement would likely have been excluded had the case proceeded
to trial. The State argues that the post-conviction court properly concluded that the
Petitioner received effective assistance of counsel. We agree with the State.
                                            -5-
       The post-conviction petitioner bears the burden of proving his allegations by clear
and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). When an evidentiary
hearing is held in the post-conviction setting, the findings of fact made by the court are
conclusive on appeal unless the evidence preponderates against them. See Tidwell v.
State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely
factual issues, the appellate court should not reweigh or reevaluate the evidence. See
Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, review of a trial court’s
application of the law to the facts of the case is de novo, with no presumption of
correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective
assistance of counsel, which presents mixed questions of fact and law, is reviewed de
novo, with a presumption of correctness given only to the post-conviction court’s
findings of fact. See Fields v. State , 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State , 6
S.W.3d 453, 461 (Tenn. 1999).

       To establish a claim of ineffective assistance of counsel, the petitioner has the
burden to show both that trial counsel’s performance was deficient and that counsel’s
deficient performance prejudiced the outcome of the proceeding. Strickland v.
Washington, 466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn.
Crim. App. 1997) (noting that the same standard for determining ineffective assistance of
counsel that is applied in federal cases also applies in Tennessee). The Strickland
standard is a two-prong test:

             First, the defendant 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 defendant by
      the Sixth Amendment. Second, the defendant must show that the deficient
      performance prejudiced the defense. This requires showing that counsel’s
      errors were so serious as to deprive the defendant of a fair trial, a trial
      whose result is reliable.

466 U.S. at 687.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
The prejudice prong of the test is satisfied by showing a reasonable probability, i.e., a
“probability sufficient to undermine confidence in the outcome,” that “but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. In the context of a guilty plea, the petitioner must show a
                                           -6-
reasonable probability that were it not for the deficiencies in counsel’s representation, he
or she would not have pled guilty but would instead have insisted on proceeding to trial.
Hill v. Lockhart, 474 U.S. 52, 59 (1985); House v. State , 44 S.W.3d 508, 516 (Tenn.
2001).

       Courts need not approach the Strickland test in a specific order or even “address
both components of the inquiry if the defendant makes an insufficient showing on one.”
466 U.S. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either
deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).

        We conclude that the record fully supports the findings and conclusions of the
post-conviction court. Trial counsel, a very experienced criminal defense attorney,
testified that he met at least five times with the Petitioner, reviewed discovery with him,
and thoroughly discussed the evidence and the pros and cons of the case, including Mr.
Taylor’s statement, which they discussed in detail. Although trial counsel had no specific
memory of his conversation with the Petitioner regarding Bruton issues, he testified that
the issue would have been brought up. Trial counsel further expressed his belief that the
Petitioner easily could have been convicted at trial, even without Mr. Taylor’s statement,
based on the State’s other evidence in the case. The post-conviction court specifically
found that neither the Petitioner nor his brother was credible in his testimony and that
each had likely committed aggravated perjury. In addition, the record reveals that the
Petitioner had an extensive criminal record and was very familiar with the criminal court
system and the process of pleading guilty, which belies his claim of having experienced
confusion during the plea colloquy. In sum, we conclude that the post-conviction court
properly concluded that the Petitioner failed to meet his burden of demonstrating that trial
counsel was ineffective or that his guilty pleas were unknowing and involuntary.
Accordingly, we affirm the denial of the petition.

                                     CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the judgment of the
post-conviction court denying the petition for post-conviction relief.


                                             ____________________________________
                                             ALAN E. GLENN, JUDGE




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