       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                         Assigned on Briefs June 21, 2016

            DANIEL ADAM BARNES v. STATE OF TENNESSEE

            Direct Appeal from the Circuit Court for Cheatham County
                      No. 16551       Larry Wallace, Judge



             No. M2016-00178-CCA-R3-PC – Filed February 24, 2017



The Petitioner, Daniel Adam Barnes, filed in the Cheatham County Circuit Court a
petition for post-conviction relief from his conviction of violating Tennessee Code
Annotated section 39-13-111 and the accompanying sentence of eleven months and
twenty-nine days. The Petitioner alleged that his counsel was ineffective by failing to
challenge the sufficiency of the evidence on direct appeal. The post-conviction court
denied the petition, and the Petitioner appeals. Upon review, we affirm the judgment of
the post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and TIMOTHY L. EASTER, JJ., joined.

Dora L. Salinas (on appeal) and M. David Perez (at trial), Ashland City, Tennessee, for
the Appellant, Daniel Adam Barnes.

Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Counsel;
Wendall Ray Crouch, Jr., District Attorney General; and Robert S. Wilson, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                      OPINION

                               I. Factual Background

      The Petitioner was charged with domestic assault, and he agreed to a bench trial.
On direct appeal, this court stated that the Petitioner‟s domestic assault conviction
             arose from events that occurred on or near the Cheatham
             County Courthouse square on August 28, 2011. The
             [Petitioner] had been formerly married to Chelsea Barnes, and
             the union produced a daughter who was two years of age in
             August 2011. The victim is the father of Chelsea Barnes and
             the grandfather of the Barnes‟s child. Pursuant to civil
             proceedings, the parties effected the visitation exchange of
             the child by meeting at the courthouse where, typically,
             Chelsea Barnes would arrange for the exchange to be
             observed by an Ashland City police officer.

                   On August 28, 2011, the parties arrived at the
             courthouse for the [Petitioner] to return the child to Ms.
             Barnes. No police officer was in observance, but the victim
             along with some of his friends with whom he had been riding
             motorcycles that day attended the exchange.

                     The victim testified that when the [Petitioner] made a
             disparaging remark about Ms. Barnes, the victim said the
             remark was “cute,” a comment that prompted the [Petitioner]
             to try to “headbutt” the victim. The victim said that when this
             failed, the [Petitioner] spat in the victim‟s face. The victim
             said that when he bowed his chest and tried to insert himself
             between the [Petitioner] and the females, the [Petitioner] hit
             him over the left eye with his fist. The blow caused a cut
             which was depicted in photographs introduced into evidence.

                     The [Petitioner] testified that the victim was the initial
             aggressor.     He said that the victim chest-bumped the
             [Petitioner], backing him up a car length, before grabbing the
             [Petitioner‟s] throat with his hands. The [Petitioner] testified
             that he then swung at the victim in self-defense.

                    The victim‟s version of the event was generally
             corroborated through the testimonies of Ms. Barnes and a
             bystander and, apparently, a video recording of the event that
             was played for the trial court but was not included in the
             record on appeal.

State v. Daniel Adam Barnes, No. M2013-00202-CCA-R3-CD, 2013 WL 6243890, at *1
(Tenn. Crim. App. at Nashville, Dec. 3, 2013). Following a bench trial, the Petitioner
was found guilty of domestic assault. The trial court imposed a sentence of eleven
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months and twenty-nine days with all but ten days to be served on probation. On appeal,
the Petitioner contended that the trial court erred by denying him the right to a separate
sentencing hearing before imposing his sentence. This court affirmed the sentence. Id.

        On January 29, 2014, the Petitioner filed a pro se petition for post-conviction
relief, which was dismissed. Thereafter, on May 1, 2014, the Petitioner again filed a pro
se petition for post-conviction relief. An attorney was appointed to represent the
Petitioner, and two amended petitions were filed. In the petitions, the Petitioner alleged
in pertinent part that his counsel was ineffective by failing to challenge the sufficiency of
the evidence on direct appeal.

        At the post-conviction hearing, the Petitioner testified that after he was convicted,
he and counsel discussed an appeal. Counsel agreed to file the appeal. The Petitioner
later learned that counsel had appealed only the sentence and not the conviction. After
this court denied relief on direct appeal, the Petitioner talked with counsel about
appealing further, but counsel took no additional action. The Petitioner felt that he was
denied the right to appeal to the highest court. The Petitioner said that he “was more
concerned with the conviction” than with the sentence, noting that his conviction
prevented him from getting “Haz Mat endorsements” on his truck driver‟s license and
from getting a hunting license so he could go hunting with his son. The Petitioner said
that he was “innocent” and “would like for things to be right.”

       The Petitioner said that he called trial counsel‟s boss, the Public Defender. The
Public Defender told the Petitioner that counsel should have appealed the Petitioner‟s
conviction and “walked [him] through” how to file a post-conviction petition. The Public
Defender “gave [the Petitioner] a bunch of codes and stuff that were on the Tennessee
website,” and the Petitioner printed forms from the website.

       The Petitioner asked the post-conviction court to find that counsel was ineffective
and grant him a delayed appeal of his conviction. The Petitioner asserted that the trial
court‟s “reasoning for finding [him] guilty [was] just kind of off-the-wall.”

        Counsel testified that he began practicing law in 1983 and that he began working
as an assistant public defender in 1986. Counsel noted that the trial court convicted the
Petitioner upon the testimony of three witnesses who contradicted the Petitioner‟s
testimony and a video of the incident. After the Petitioner was convicted, counsel
advised him of his right to appeal his conviction and his sentence. Counsel thought that
an appeal of the conviction would not be successful and might “have detracted from what
potentially could have been a good issue on appeal.” Counsel explained that in his
experience, an appeal obtained “more favorable results if [he stuck] to an issue that [had]
a legitimate basis rather than throwing everything up there and hoping something sticks.”
Counsel advised the Petitioner that if he wanted to appeal his conviction, “he could hire a
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lawyer [who] would do anything he wanted to do, but that [counsel] felt the only issue
that we might have a chance on was the sentencing and that‟s what [counsel] intended to
appeal.”

       On cross-examination, counsel said that the trial court convicted the Petitioner
because it found the State‟s witnesses to be more credible. Additionally, the trial court
found that the video showed “people heading across the street before the actual
altercation . . . occurred. That something happened to precipitate that assault.” Counsel
said that when he reviewed the evidence adduced at trial, he thought the Petitioner‟s
conviction would be affirmed on appeal. Counsel said that he did not include the video
in the record on appeal because he was not appealing the Petitioner‟s conviction.
Additionally, he believed that “the less corroboration of the Judge‟s ruling [he] gave [the
Court of Criminal Appeals,] the better off [he] thought [his] odds were on appeal.”

       Counsel recalled that after the Petitioner‟s sentence was affirmed by this court, the
Petitioner “indicated his displeasure with what we had already done” and wanted to
include a complaint about counsel‟s representation in his appeal to our supreme court.
Counsel advised the Petitioner that our supreme court would decide only whether to
review the ruling of this court and would not entertain a complaint about counsel.
Counsel advised the Petitioner that he could raise a complaint about counsel in a petition
for post-conviction relief. Counsel further advised the Petitioner that he could not
represent the Petitioner in the post-conviction proceeding and that the Petitioner would
have to file a pro se petition for post-conviction relief. Counsel later learned that the
Public Defender supplied the Petitioner with a post-conviction form.

        Upon questioning by the post-conviction court, counsel stated that he would have
raised the sufficiency of the evidence on appeal if the Petitioner had insisted; however,
counsel thought the best strategy to obtain relief on direct appeal was to challenge the
sentence, which he believed was a stronger issue. After counsel explained his reasons for
appealing only the sentence, the Petitioner did not insist on challenging the sufficiency of
the evidence. Accordingly, counsel thought the Petitioner agreed with counsel‟s strategy
for the appeal.

        The Public Defender testified that the Petitioner called and told him that he was
concerned because counsel did not challenge the Petitioner‟s conviction on direct appeal.
The Public Defender told the Petitioner about post-conviction relief and explained how to
initiate post-conviction proceedings. The Public Defender stated that he thought an
attorney should appeal the sufficiency of the evidence if the client wanted the issue raised
and opined that counsel erred by not appealing the conviction.

       On cross-examination, the Public Defender acknowledged that as long as the
Petitioner acquiesced to the appeal strategy, counsel “did everything appropriately.”
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       The post-conviction court found that counsel was not deficient and that the
Petitioner was not prejudiced; accordingly, the post-conviction court denied relief. On
appeal, the Petitioner challenges the post-conviction court‟s ruling.

                                       II. Analysis

        To be successful in a claim for post-conviction relief, a petitioner must prove the
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “„Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.‟” State v. Holder, 15 S.W.3d 905, 911 (Tenn.
Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.
1992)). Issues regarding the credibility of witnesses, the weight and value to be accorded
their testimony, and the factual questions raised by the evidence adduced at trial are to be
resolved by the post-conviction court as the trier of fact. See Henley v. State, 960
S.W.2d 572, 579 (Tenn. 1997). Therefore, the post-conviction court‟s findings of fact are
entitled to substantial deference on appeal unless the evidence preponderates against
those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

       A claim of ineffective assistance of counsel is a mixed question of law and fact.
See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction
court‟s findings of fact de novo with a presumption that those findings are correct. See
Fields, 40 S.W.3d at 458. However, we will review the post-conviction court‟s
conclusions of law purely de novo. Id.

        When a petitioner seeks post-conviction relief on the basis of ineffective
assistance of counsel, “the petitioner bears the burden of proving both that counsel‟s
performance was deficient and that the deficiency prejudiced the defense.” Goad v.
State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)). To establish deficient performance, the petitioner must show that counsel‟s
performance was below “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, 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. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. Moreover,

                      [b]ecause a petitioner must establish both prongs of the
              test, 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
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              any particular order or even address both if the [petitioner]
              makes an insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697). The same test is used to
determine the effectiveness of trial counsel and appellate counsel. See Carpenter v. State,
126 S.W.3d 879, 886 (Tenn. 2004).

       Regarding the Petitioner‟s complaint that counsel was ineffective by failing to
appeal the Petitioner‟s conviction, we note that this court has previously observed:

              “[F]ailure to preserve and/or assert all arguable issues on
              appeal is not per se ineffective assistance of counsel, since the
              failure to do so may be a part of the counsel‟s strategy of
              defense. Counsel is not constitutionally required to argue
              every issue on appeal, or present issues chosen by his client.
              The determination of which issues to present on appeal is a
              matter of counsel‟s discretion.”

State v. Matson, 729 S.W.2d 281, 282 (Tenn. Crim. App. 1986) (quoting State v.
Swanson, 680 S.W.2d 487, 491 (Tenn. Crim. App. 1984)). Moreover, “[a]ppellate
counsel [is] not constitutionally required to raise every conceivable issue on appeal.”
Carpenter, 126 S.W.3d at 887. “[T]he determination of which issues to raise on appeal
can be characterized as tactical or strategic[] choices, which . . . should not be „second
guessed‟ on appeal, subject, of course, to the requisite professional standards.” Cooper v.
State, 849 S.W.2d 744, 747 (Tenn. 1993).

      Our supreme court has set forth the following “non-exhaustive list” of factors
which “is useful in determining whether an attorney on direct appeal performed
reasonably competently in a case in which counsel has failed to raise an issue”:

              1) Were the omitted issues “significant and obvious”?
              2) Was there arguably contrary authority on the omitted
              issues?
              3) Were the omitted issues clearly stronger than those
              presented?
              4) Were the omitted issues objected to at trial?
              5) Were the trial court‟s rulings subject to deference on
              appeal?
              6) Did appellate counsel testify in a collateral proceeding as
              to his appeal strategy and, if so, were the justifications
              reasonable?
              7) What was appellate counsel‟s level of experience and
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             expertise?
             8) Did the petitioner and appellate counsel meet and go over
             possible issues?
             9) Is there evidence that counsel reviewed all the facts?
             10) Were the omitted issues dealt with in other assignments
             of error?
             11) Was the decision to omit an issue an unreasonable one
             which only an incompetent attorney would adopt?

Carpenter, 126 S.W.3d at 888.

       The post-conviction court accredited the testimony of counsel. Counsel testified
that he evaluated the evidence adduced at trial and decided challenging the sufficiency of
the evidence would not be successful on direct appeal. Counsel said that he thought his
challenge regarding sentencing was stronger than a challenge to the sufficiency of the
evidence. Counsel stated that in his experience, an appeal was more likely to yield
beneficial results if he focused on the strongest issue. Counsel further testified that he
advised the Petitioner that he was going to challenge only sentencing. Counsel thought
the Petitioner agreed with the strategy. The post-conviction court reviewed the evidence
adduced at trial and found that ample evidence existed to sustain the Petitioner‟s
conviction, that counsel made a reasonable strategic decision not to appeal the sufficiency
of the evidence, and that Petitioner failed to show that he was prejudiced by the decision.
The Petitioner failed to show that an appeal of his conviction on the basis of insufficient
evidence would have been successful or that he was prejudiced by trial counsel‟s failure
to appeal the conviction. See Anthony Reid v. State, No. E2003-01953-CCA-R3-PC,
2004 WL 626714, at *13 (Tenn. Crim. App. at Knoxville, Mar. 29, 2004). Accordingly,
we conclude that the post-conviction court did not err by denying post-conviction relief.

                                     III. Conclusion

      Finding no error, we affirm the judgment of the post-conviction court.


                                                 _________________________________
                                                 NORMA MCGEE OGLE, JUDGE




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