        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs October 9, 2012

    CHRISTOPHER TERRELL ROBINSON v. STATE OF TENNESSEE

                     Appeal from the Circuit Court for Bedford County
                               No. 17261 Lee Russell, Judge



                  No. M2012-00781-CCA-R3-PC - Filed December 4, 2012


Petitioner, Christopher Terrell Robinson, was found guilty by a Bedford County jury of
violating the Habitual Motor Vehicle Offender (“HMVO”) Act, evading arrest, and violating
the light law. In a separate case, Petitioner pled guilty to felony failure to appear. The trial
court sentenced Petitioner to an effective sentence of twelve years, to be served as a Career
Offender at 60 percent. Petitioner’s convictions and sentence were upheld on direct appeal.
See State v. Christopher Terrell Robinson, No. M2010-01183-CCA-R3-CD, 2011 WL
1671809, at *1 (Tenn. Crim. App., at Nashville, Apr. 29, 2011), perm. app. denied, (Tenn.
Jul. 13, 2011). Subsequently, Petitioner sought post-conviction relief on the basis of
ineffective assistance of counsel. The petition was dismissed after an evidentiary hearing.
Petitioner appeals the dismissal of the petition for post-conviction relief. After a review of
the record, we affirm the post-conviction court’s denial of post-conviction relief because
Petitioner has failed to show by clear and convincing evidence that he is entitled to post-
conviction relief. Accordingly, the judgment of the post-conviction court is affirmed.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J OHN E VERETT W ILLIAMS and
N ORMA M CG EE O GLE, JJ., joined.

Kristin B. Green, Shelbyville, Tennessee, for the appellant, Christopher Terrell Robinson.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Charles Crawford, District Attorney General, and Richard Cawley, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                          OPINION

                                    Factual Background

       The underlying convictions arose after Petitioner was stopped for failing to activate
his headlights. This Court summarized the facts on direct appeal as follows:

       Darrell Birdsong, an officer with the Shelbyville Police Department, testified
       that on May 23, 2008, he was working the night shift as a patrolman when he
       observed a vehicle traveling toward him without any headlights activated at
       around 10:53 p.m. The officer flashed his own headlights at the driver,
       attempting to get the driver to illuminate his headlights, but the driver never
       turned on his lights. The officer activated his emergency blue lights to initiate
       a stop of this vehicle, and the driver did not “act like [he] wanted to stop.” The
       officer blocked the path of the vehicle, and the vehicle came to a stop.

               The officer testified that, once the car was stopped, the driver
       “immediately jumped” out of the car. The officer activated the video camera
       in his patrol car and ordered the driver, whom he identified as [Petitioner], to
       get back into [Petitioner’s] vehicle. After noting that a passenger was in
       [Petitioner’s] car, the officer asked [Petitioner] for his driver’s license, and
       [Petitioner] told the officer it was at his house, which was located nearby. The
       officer asked [Petitioner] to come toward the officer’s car to discuss the
       matter, and [Petitioner] began running in the opposite direction. The officer
       said he chased [Petitioner] for approximately three minutes, during which he
       radioed the police dispatcher to enlist assistance. [Petitioner] ultimately eluded
       the officer, who then returned to [Petitioner’s] car and spoke with
       [Petitioner’s] passenger, who identified [Petitioner] only as “Chris.”

Id. at *1-2. Authorities later discovered Petitioner’s identity and that Petitioner had been
declared an HMVO. Id. Petitioner was eventually arrested several days later when he was
found hiding in a closet in a trailer. Id. After hearing this evidence, a Bedford County jury
convicted Petitioner of violating the HMVO Act, evading arrest, and a violation of the light
law. Id. at *3.

        After being convicted by the jury, Petitioner entered a guilty plea to the charge of
felony failure to appear for failing to appear in General Sessions Court at a scheduled hearing
on the charges for which he was convicted at trial. Id. The trial court sentenced Petitioner
in a joint sentencing hearing for both cases as a Career Offender to a twelve-year sentence
to be served at 60 percent. Id.

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       Petitioner initiated a direct appeal of his convictions and sentence. Id. at *1. This
Court determined that the evidence was sufficient to support the finding that Petitioner
violated the HMVO Act despite the apparent absence of the HMVO order in evidence. The
opinion on direct appeal states that, “[i]t appears from the record that the order was entered
as an attachment to [Petitioner’s] warrant for failing to appear in General Sessions Court to
respond to the charges in this case.” Id. at *3 n.1. This Court determined that the evidence
was sufficient to support the finding that Petitioner was violating an HMVO order based on
the testimony of the arresting officer and the fact that Petitioner did not object to the
testimony but cautioned that the better practice would have been for the State to introduce
a certified copy of the order into evidence at trial. Id. at *4. This Court also upheld
Petitioner’s sentence. Id. at *6.

       Subsequently, Petitioner filed a pro se petition for post-conviction relief. In the
petition, ineffective assistance of counsel was raised by Petitioner. Specifically, Petitioner
claimed that he received ineffective assistance of counsel when counsel failed to object to
Officer Birdsong’s testimony establishing Petitioner to be in violation of an HMVO order
when there was no order entered into evidence.

        The post-conviction court held a hearing on the petition. At the hearing, trial counsel
testified that he was appointed to represent Petitioner in Circuit Court. He recalled that he
requested discovery from the State and testified that it was his normal practice to share
discovery production with his client. Trial counsel recalled that there was actually a
stipulation entered into at trial with regard to Petitioner’s status as an HMVO. Specifically,
he stated:

       I didn’t object to [Officer Birdsong’s testimony] because we had a stipulation
       with the Assistant DA to stipulate the fact in and the order in that [Petitioner]
       had been declared a Habitual Motor Offender. Also, I had discussed that with
       [Petitioner] prior to trial and [Petitioner] admitted that he was Habitual Motor
       Offender - or had been declared an Habitual Motor Offender.

A portion of the trial transcript was admitted as an exhibit to trial counsel’s testimony at the
hearing on the petition for post-conviction relief. This excerpt contains a stipulation by the
parties that Petitioner was an HMVO and admission of the HMVO order as an exhibit. Trial
counsel testified that it is his standard practice to stipulate as to a client’s HMVO status when
the client admits to the status. In discussions with Petitioner prior to trial, Petitioner had
admitted that he was an HMVO.

      Another attorney from the Public Defender’s office assisted trial counsel and
confirmed that the defense entered into a stipulation at trial as to the HMVO status and did

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not object to the testimony of Officer Birdsong. Co-counsel explained that the stipulation
was entered into in order to avoid calling the county clerk as a witness to prove a defendant’s
HMVO status. Co-counsel recalled that Petitioner represented himself at the preliminary
hearing phase of the case and actually admitted to driving the car at the hearing.

        The post-conviction court entered an order denying the petition. In the order, the
court determined that Petitioner presented proof on two issues at the hearing: (1) whether
trial counsel was ineffective for failing to object to Officer Birdsong’s testimony about
Petitioner’s HMVO status; and (2) whether trial counsel was ineffective for stipulating as to
Petitioner’s HMVO status. The post-conviction court noted that there was “confusion”
surrounding Petitioner’s HMVO status because counsel “on appeal raised the issue that the
status had not been proven at trial.” The post-conviction court attributed this to the fact that
“the attorney on appeal did not realize that the parties had a stipulation about the [HMVO]
status because the court reporter at trial had mistakenly failed to include the stipulation in the
trial record.” The post-conviction court found that Petitioner’s status as an HMVO was
“indisputable” and the only issue was whether it was ineffective assistance of counsel for
counsel to enter into the stipulation at trial. The post-conviction court pointed to the
stipulation, the actual order declaring Petitioner an HMVO, and a motion to dismiss in
Petitioner’s own handwriting wherein Petitioner admitted that he was “declared an Habitual
Motor Offender on January 7, 1999.” As a result of all of the proof of Petitioner’s status, the
post-conviction court stated that there was “absolutely no reason whatsoever for defense
counsel to refuse to enter into the stipulation” and thus trial counsel was not ineffective.

        Petitioner raised an additional issue at the hearing that was not included in the petition
for post-conviction relief.1 Petitioner asserted that it was ineffective assistance of counsel
when counsel argued the motion for new trial without Petitioner’s presence in the court room.
The post-conviction court found that there was not evidence that Petitioner “was not present”
at the hearing and even if Petitioner was not present, there was no proof that the outcome
would have been any different. As a result of the findings, the post-conviction court
dismissed the petition.

       Petitioner filed a timely notice of appeal.




       1
           This issue was abandoned on appeal.

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                                          Analysis

                            Post-Conviction Standard of Review

       The post-conviction court’s findings of fact are conclusive on appeal unless the
evidence preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).
During our review of the issues raised, we will afford those findings of fact the weight of a
jury verdict, and this Court is bound by the post-conviction court’s findings unless the
evidence in the record preponderates against those findings. See Henley v. State, 960 S.W.2d
572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997). This
Court may not reweigh or re-evaluate the evidence, nor substitute its inferences for those
drawn by the post-conviction court. See State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn.
2001). However, the post-conviction court’s conclusions of law are reviewed under a purely
de novo standard with no presumption of correctness. See Shields v. State, 40 S.W.3d 450,
458 (Tenn. 2001).

                             Ineffective Assistance of Counsel

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, the petitioner bears the burden of showing that (a) the services rendered by trial
counsel were deficient and (b) that the deficient performance was prejudicial. See Powers
v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient
performance, the petitioner must show that the services rendered or the advice given was
below “the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn. 1975). In order to demonstrate prejudice, the petitioner must
show that there is a reasonable probability that, but for counsel’s deficient performance, the
result of the proceeding would have been different. See Strickland v. Washington, 466 U.S.
668, 694 (1984). “Because a petitioner must establish both prongs of the test to prevail on
a claim of ineffective assistance of counsel, failure to prove either deficient performance or
resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley v. State,
960 S.W.2d 572, 580 (Tenn. 1997).

       As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record
preponderates against the court’s findings. See id. at 578. However, our supreme court has
“determined that issues of deficient performance by counsel and possible prejudice to the
defense are mixed questions of law and fact . . . ; thus, [appellate] review of [these issues]
is de novo” with no presumption of correctness. Burns, 6 S.W.3d at 461.



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        Furthermore, on claims of ineffective assistance of counsel, the petitioner is not
entitled to the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. 1994).
This Court may not second-guess a reasonably-based trial strategy, and we cannot grant relief
based on a sound, but unsuccessful, tactical decision made during the course of the
proceedings. See id. However, such deference to the tactical decisions of counsel applies
only if counsel makes those decisions after adequate preparation for the case. See Cooper
v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

        The evidence does not preponderate against the judgment of the post-conviction court.
Trial counsel and co-counsel both testified that it was standard practice to stipulate a
defendant’s HMVO status if the client admits to the status. Petitioner had admitted being
declared an HMVO; was given a copy of the order provided in discovery; and, according to
the uncontradicted testimony of his attorneys, had discussed the stipulation. Further,
Petitioner has failed to show prejudice as a result of the stipulation. He offered no testimony
at the hearing on the petition that showed he was prejudiced in any way by trial counsels’s
actions.

                                         Conclusion

       For the foregoing reasons, the judgment of the post-conviction court is affirmed.




                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




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