        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs November 12, 2014

            YONI SALES BARAHONA v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                  No. 2010-A-553    J. Randall Wyatt, Jr., Judge



             No. M2014-00415-CCA-R3-PC          - Filed February 4, 2015


The Petitioner, Yoni Sales Barahona, appeals from the denial of post-conviction relief by the
Criminal Court for Davidson County. He was convicted of aggravated assault and sentenced
to ten years’ imprisonment in the Tennessee Department of Correction. On appeal, the
Petitioner argues that he received ineffective assistance of counsel at the appellate level.
Upon 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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which N ORMA M CG EE
O GLE and R OBERT H. M ONTGOMERY, J R., JJ., joined.

Ryan C. Caldwell, Nashville, Tennessee, for the Petitioner, Yoni Sales Barahona.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Victor S. Johnson III, District Attorney General; and Brian M. Ewald, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

       The Petitioner’s conviction arose from the stabbing of the victim, Jose
Aguilar-Varagas, on November 21, 2009, at a night club in Nashville. After a jury trial, the
Petitioner was convicted as charged of aggravated assault. He was subsequently sentenced
as a Range II, multiple offender to ten years’ incarceration. See State v. Yoni Sales
Barahona, No. M2011-01300-CCA-R3-CD, 2012 WL 3291799 (Tenn. Crim. App. Aug. 13,
2012), perm. app. denied (Tenn. Jan. 14, 2013). In its opinion on direct appeal, this court
summarized the evidence as follows:
       At trial, club owner and manager Oscar Membreno testified that on
November 21, 2009, he saw “a group of people that were fighting inside the
club,” so he went outside to call the police. As he left, he “saw a young man
that had a knife in his hand” and another individual “screaming that he had
been cut or stabbed.” Mr. Membreno identified the [Petitioner] as the person
he had seen with a knife. He said that he did not see any other individual with
a knife that night. He also identified a knife produced by the State as the knife
police recovered from the women’s restroom inside the night club on
November 21, 2009. Mr. Membreno said that he saw “[t]he one that was
bleeding” identify the [Petitioner] as the person who had stabbed him.

        During cross-examination, Mr. Membreno said that there were
approximately 60 people in the night club when the fight broke out among the
25 or so people who were standing near the pool tables. He testified that he
employed two bouncers, but he had sent both home by the time the fight
erupted. As a result, there were some people who had been permitted to enter
the establishment without being searched for weapons. Mr. Membreno
clarified that he did not see the [Petitioner] threaten anyone with the knife. He
acknowledged that after the stabbing, the “friends of the wounded man” went
outside and returned with “a machete.” He said that the victim left the bar but
returned when police arrived. He conceded that he did not see the [Petitioner]
go into the women’s restroom and that he had only seen the “silver” part of the
knife that the [Petitioner] held. He said that he could not be sure that the knife
recovered by police was the knife he saw in the [Petitioner]’s hand.

       Emergency room physician Doctor John Nixon testified that he treated
the victim for “what appeared to be a superficial stab wound right below the
naval.”

       Investigator Hugh Coleman of the Davidson County District Attorney
General’s Office testified that he was asked to locate the victim, Jose Oscar
Aguilar-Varagas. He said that he consulted several databases using various
spellings and word combinations similar to the victim’s name along with
similar dates of birth to obtain information relative to the victim. Utilizing the
information he found, he traveled to several addresses that had been associated
with the victim. Despite his efforts, he was not able to locate the victim.

        At that point, the recording of the victim’s preliminary hearing
testimony was played for the jury. During that testimony, the victim testified
that he had gone to the Oasis night club “to pick up some money” from a man

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he had been working for. He said that the [Petitioner] came up to him and
asked him if he “belong[ed] to a marra.” The victim said that when he told the
[Petitioner] that he did not “belong to any marra,” the [Petitioner] told the
victim that he did and then “lifted up his shirt like this.” In response, the
victim lifted his own shirt, and the [Petitioner] said, “[O]h well that’s pretty
nice then.” The victim then walked away from the [Petitioner] heading toward
the restroom. At that point, the [Petitioner], who had pulled a knife, came
toward the victim’s cousin. The victim said that he “pushed [his] cousin
aside,” and the [Petitioner] stabbed him. He testified that he went outside the
bar after being stabbed. The victim denied being a member of any gang. The
victim said that he consumed only part of a single beer prior to the altercation
and that the [Petitioner] did not appear to be intoxicated.

       During cross-examination, the victim claimed that his employer
instructed him to come to the diner adjoining the night club to get paid. He
said that he did not talk to the [Petitioner] for very long and that he did not
know the meaning of the word “marra,” which apparently referenced gang
membership. The victim said that he was at the club with his cousin, a friend,
and a man whose name he did not know. He said that none of his companions
was armed with a machete.

        Metro Police Department Officer Clifton Huffmaster testified that he
traveled to the Oasis night club in response to a call that an armed person was
located on the premises. When he arrived, Mr. Membreno, who was waiting
outside, told him that “there had been a stabbing and a fight and that the person
who had done the stabbing was still inside of the night club.” Once inside the
establishment, Mr. Membreno identified the [Petitioner] as the perpetrator, and
officers took the [Petitioner] into custody. Officer Huffmaster described the
scene as “somewhat chaotic” and the patrons that remained at the bar as “still
quite rowdy.” He said that although the victim was not at the night club when
officers first arrived, the victim “returned to the scene and identified the
[Petitioner] as the [one] who had stabbed him.” Officer Huffmaster testified
that the victim had a puncture wound in his abdomen and that his shirt was
bloody. Accordingly, he summoned an ambulance, and the victim was taken
to the hospital. Officer Huffmaster said that officers discovered a knife inside
the restroom at the night club. He could not say, however, that the knife
recovered by officers was the weapon used to stab the victim. He did not see
any blood on the [Petitioner]’s person.




                                   -3-
               Detective Brandon Dozier, who was the lead investigator in the case,
       testified that by the time he arrived on the scene on November 21, 2009, patrol
       officers had taken control of the scene, the [Petitioner] was handcuffed in the
       back of a patrol car, and the victim had been taken to the hospital. He spoke
       briefly with the witnesses at the scene and with the [Petitioner] before going
       to the hospital to speak with the victim. Because the victim did not speak
       English, Detective Dozier “wasn’t able to really speak to him” but did observe
       “injuries consistent with” descriptions provided at the scene. He said that the
       hole in the victim’s shirt was consistent with the blade of the knife recovered
       at the scene. As part of his investigation, he photographed the [Petitioner] to
       confirm the victim’s description of the [Petitioner]’s tattooed abdomen.

Id. at *1-2. On direct appeal, this court noted that the Petitioner alleged twenty-one separate
assignments of error, although “[s]ome of these issues ha[d] been waived, and others [we]re
redundant.” Id. at *1. This court concluded that six claims merited appellate review:

       (1) the trial court erred by admitting into evidence the transcript of the victim’s
       preliminary hearing testimony, (2) the trial court erred by denying his motion
       to suppress, (3) the trial court erred by admitting into evidence the in-court and
       out-of-court identifications of the [Petitioner] by both the victim and Mr.
       Membreno, (4) the trial court erred by admitting into evidence the knife
       recovered from the scene, (5) the evidence is insufficient to support his
       conviction, and (6) the trial court erred by imposing a fully incarcerative 10-
       year sentence.

Id. at *3. Ultimately, this court concluded that the Petitioner had waived many of his claims
for failure to cite to authority or to the record and accordingly affirmed the Petitioner’s
conviction and sentence. The Tennessee Supreme Court denied his application for
permission to appeal.

        On May 1, 2013, the Petitioner filed a timely pro se petition for post-conviction relief,
alleging six claims for relief based on ineffective assistance of counsel. He subsequently
filed an amended petition with the assistance of counsel on November 15, 2013. The post-
conviction hearing occurred on December 17, 2013.1

       Post-Conviction Hearing. The Petitioner testified that he was convicted by a jury
of aggravated assault and sentenced to serve ten years at thirty-five percent. He recalled


       1
         On appeal, the Petitioner raised only the single issue of ineffective assistance of counsel.
Accordingly, we only address testimony from the hearing relevant to this issue.

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counsel advising him that he could receive a maximum sentence of ten years. He stated that
counsel had mentioned a plea offer but that counsel said “he was ready to go to trial.” The
Petitioner testified that he was also ready to go to trial. He said he did not want to testify at
trial. He received a copy of his appellate brief but claimed that he could not make any
suggestions because the brief had already been filed.

         On cross-examination, the Petitioner acknowledged that at the time of trial, he had a
pending federal case for illegal re-entry. He agreed that it was his choice to give up his right
to testify at trial. The Petitioner stated that there were many evidentiary errors at trial, though
he could not specify the issues that counsel should have included in the appeal. He
acknowledged that counsel raised twenty-one errors in the motion for new trial, but he did
not know what issues were included.

        The State called counsel after the close of the Petitioner’s proof. Counsel testified that
he was licensed to practice law in 2005 and that about half of his practice was devoted to
criminal law. He said that he frequently met with the Petitioner and that they also
communicated by mail because the Petitioner was “a very avid letter writer[.]” Counsel did
not have any difficulty communicating with the Petitioner, but he used an interpreter to
ensure that the Petitioner understood his legal rights. He said that the State offered the
Petitioner three years but the Petitioner was “really concerned” about his federal charge and
did not want a felony conviction. According to counsel, the Petitioner “insisted on going to
trial.”

       While preparing for trial, counsel was aware of the State’s difficulties in locating the
victim. He recalled filing multiple motions to suppress based on the unavailable witness.
Counsel sought to prevent the State from introducing the victim’s prior testimony from the
preliminary hearing as well as any subsequent in-court identifications made by the victim.
Although the motions were denied, counsel said he renewed his objections against the
introduction of the preliminary hearing transcript at trial and on appeal.

        On cross-examination, counsel conceded that the Court of Criminal Appeals
considered many of his issues to have been waived on direct appeal. He agreed that one of
the waived issues included whether the State used due diligence in locating the victim before
introducing the victim’s prior testimony. Counsel recalled that at the suppression hearing,
the trial court concluded that the State had used due diligence. He agreed that the victim’s
prior testimony was “pivotal,” but he did not believe it was essential to the State’s case
because there were other eyewitnesses who had testified.




                                                -5-
       At the conclusion of the hearing, the post-conviction court took the matter under
advisement. On February 12, 2014, the court entered a written order denying relief. The
Petitioner timely appealed the post-conviction court’s order.

                                        ANALYSIS

        On appeal, the Petitioner argues that counsel was ineffective at the appellate level by
failing to preserve the issue of the admissibility of the victim’s prior testimony from the
preliminary hearing. He contends that counsel’s failure to cite to authority and to the record
unduly prejudiced his case because the issue was not properly addressed on appeal. The
State responds that the post-conviction court properly denied relief because the Petitioner
failed to establish that he was prejudiced by counsel’s alleged deficiency. We agree with the
State.

      Post-conviction relief is only warranted when a petitioner establishes that his or her
conviction is void or voidable because of an abridgement of a constitutional right. T.C.A.
§ 40-30-103. The Tennessee Supreme Court has held:

              A post-conviction court’s findings of fact are conclusive on appeal
       unless the evidence preponderates otherwise. When reviewing factual issues,
       the appellate court will not re-weigh or re-evaluate the evidence; moreover,
       factual questions involving the credibility of witnesses or the weight of their
       testimony are matters for the trial court to resolve. The appellate court’s
       review of a legal issue, or of a mixed question of law or fact such as a claim
       of ineffective assistance of counsel, is de novo with no presumption of
       correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal quotation marks and citations
omitted). “The petitioner bears the burden of proving factual allegations in the petition for
post-conviction relief by clear and convincing evidence.” Id. (citing T.C.A. § 40-30-110(f);
Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006)). Evidence is considered clear and
convincing when there is no serious or substantial doubt about the accuracy of the
conclusions drawn from it. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)
(citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).

       Vaughn further repeated well-settled principles applicable to claims of ineffective
assistance of counsel:

              The right of a person accused of a crime to representation by counsel
       is guaranteed by both the Sixth Amendment to the United States Constitution

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       and article I, section 9, of the Tennessee Constitution. Both the United States
       Supreme Court and this Court have recognized that this right to representation
       encompasses the right to reasonably effective assistance, that is, within the
       range of competence demanded of attorneys in criminal cases.

Vaughn, 202 S.W.3d at 116 (internal quotation marks and citations omitted).

       In order to prevail on an ineffective assistance of counsel claim, the petitioner must
establish that (1) his lawyer’s performance was deficient and (2) the deficient performance
prejudiced the defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 687 (1984);
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[A] failure to prove either deficiency
or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim.
Indeed, a court need not address the components in any particular order or even address both
if the defendant makes an insufficient showing of one component.” Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S. at 697).

       A petitioner successfully demonstrates deficient performance when the evidence
establishes that the attorney’s conduct fell below “an objective standard of reasonableness
under prevailing professional norms.” Id. at 369 (citing Strickland, 466 U.S. at 688; Baxter,
523 S.W.2d at 936). Prejudice arising therefrom is demonstrated once the petitioner
establishes “‘a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’” Id. at 370 (quoting Strickland, 466
U.S. at 694). This two-prong Strickland test applies to claims of ineffective assistance of
counsel at either the trial or appellate levels. See Campbell v. State, 904 S.W.2d 594, 596
(Tenn. 1995) (citing Evitts v. Lucey, 469 U.S. 387 (1985)). In other words, a petitioner
alleging ineffective assistance of appellate counsel must prove both the unreasonable
performance of counsel on direct appeal and actual prejudice resulting from that
performance. Id.

      We note that “[a]ppellate counsel are not constitutionally required to raise every
conceivable issue on appeal.” Carpenter v. State, 126 S.W.3d 879, 887 (Tenn. 2004) (citing
King v. State, 989 S.W.2d 319, 334 (Tenn.1999); Campbell, 904 S.W.2d at 596-97). In
Carpenter v. State, the Tennessee Supreme Court applied the following analysis to claims
based on counsel’s failure to raise certain issues on appeal:

              If a claim of ineffective assistance of counsel is based on the failure to
       raise a particular issue, as it is in this case, then the reviewing court must
       determine the merits of the issue. See, e.g., Kimmelman v. Morrison, 477 U.S.
       365, 375 (1986). Obviously, if an issue has no merit or is weak, then appellate

                                          -7-
       counsel’s performance will not be deficient if counsel fails to raise it.
       Likewise, unless the omitted issue has some merit, the petitioner suffers no
       prejudice from appellate counsel’s failure to raise the issue on appeal. When
       an omitted issue is without merit, the petitioner cannot prevail on an
       ineffective assistance of counsel claim. See United States v. Dixon, 1 F.3d
       1080, 1083 (10th Cir. 1993).

Id. at 887-88.

       In its order denying relief, the post-conviction court specifically held that the
Petitioner failed to establish prejudice based on counsel’s representation on appeal:

       The Petitioner contends that [counsel] was ineffective in failing to adequately
       brief the issue regarding the Court’s denial of his motion to suppress the
       preliminary hearing transcript. According to the Petitioner, [counsel] waived
       the issue on appeal by failing to cite any authority in support of his argument
       and neglecting to provide appropriate references to the record. The Court
       finds that the Court of Criminal Appeals did deem the issue waived based on
       [counsel]’s failure “to support his claim with citation to relevant authorities
       and completely failed to provide any appropriate references to the record in his
       argument.” State v. Barahona, M2011-01300-CCA-R3-CD, 2012 WL
       3291799 (Tenn. Crim. App. Aug. 13, 2012). However, the Court finds that the
       there was no proof presented that there is a reasonable probability that the
       outcome of the appeal would have been different had [counsel] adequately
       briefed this specific issue. Therefore, the Court finds that the Petitioner failed
       to satisfy the second prong of the Strickland analysis as to this issue, and that
       the issue is therefore without merit.

        We conclude that the record fully supports the post-conviction court’s determination
that the Petitioner failed to establish that counsel was ineffective for failing to properly
preserve the issue regarding the preliminary hearing transcript. In his brief, the Petitioner
asserts that “[w]ithout being able to introduce this evidence, the State would have been
unable to proceed against the [Petitioner] at trial, and his case would have been dismissed.”
Apart from this bare assertion, the Petitioner has failed to argue this issue. At the evidentiary
hearing, the Petitioner did not present any proof or argument to establish a reasonable
probability that the proper briefing of the preliminary hearing issue would have resulted in
a different outcome.

      Initially, as a general rule, “the admissibility of evidence rests within the trial court’s
sound discretion, and the appellate court does not interfere with the exercise of that discretion

                                               -8-
unless a clear abuse appears on the face of the record.” State v. Franklin, 308 S.W.3d 799,
809 (Tenn. 2010) (citing State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007)). Moreover,
Rule 804(b)(1) of the Tennessee Rules of Evidence provides that the former testimony of an
unavailable declarant is admissible where the opposing party had the opportunity to cross-
examine the witness. Tenn. R. Evid. 804(b)(1). Finally, apart from the victim’s
identification of the Petitioner, club owner Oscar Membreno testified at trial that he observed
the Petitioner with “a knife in his hand” and that he was present when the victim identified
the Petitioner as the assailant.2 Accordingly, the Petitioner has made an insufficient showing
that he suffered prejudice due to counsel’s alleged deficiencies. See Goad, 938 S.W.2d at
370 (citing Strickland, 466 U.S. at 697). Although he faults counsel for failing to preserve
the issue of the preliminary hearing transcript for appeal, the Petitioner has not demonstrated
that but for counsel’s failure to adequately brief the issue, the outcome of the proceeding
would have been different. Here, the record fully supports the post-conviction court’s
holding that the Petitioner failed to establish prejudice. Because the Petitioner has made an
insufficient showing of prejudice, we need not address the issue of deficiency. See Goad,
938 S.W.2d at 370 (citing Strickland). The Petitioner is not entitled to relief.

                                             CONCLUSION

       Upon review, we affirm the judgment of the post-conviction court.




                                                          ___________________________________
                                                          CAMILLE R. McMULLEN, JUDGE




       2
           As this court noted on direct appeal:

                The record establishes that immediately after officers arrived on the scene at the
       night club, Mr. Membreno led them inside and identified with certainty the [Petitioner] as
       the person who had possessed a knife during the fight. Mr. Membreno testified at trial that
       the fight occurred near the pool tables, a well-lit area of the night club. The totality of the
       circumstances thus supports a finding that Mr. Membreno’s identification of the defendant
       was not unduly suggestive. Indeed, because it was orchestrated entirely by Mr. Membreno
       himself, the identification was not suggestive at all.

Yoni Sales Barahona, 2012 WL 3291799, at *6.

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