        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs April 10, 2012

               ROBERT LEE YATES v. STATE OF TENNESSEE

               Direct Appeal from the Circuit Court for Warren County
                       No. F-10328     Larry B. Stanley, Judge


               No. M2011-00961-CCA-R3-PC - Filed November 2, 2012


The petitioner, Robert Lee Yates, appeals the Warren County Circuit Court’s denial of his
petition for post-conviction relief. The petitioner was convicted by a jury of one count of
aggravated robbery and sentenced to thirty years in the Department of Correction. On
appeal, he contends he was denied his right to the effective assistance of counsel at trial and
on appeal. Following review of the record, we affirm the denial of post-conviction relief.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which C AMILLE R.
M CM ULLEN and J EFFREY S. B IVINS, JJ., joined.

Phillip T. Clemons, McMinnville, Tennessee (on appeal); Bud Sharp, McMinnville,
Tennessee (on direct appeal); and Tracy Caten, McMinnville, Tennessee (at trial), for the
appellant, Robert Lee Yates.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel;
Lisa Zavogiannis, District Attorney General; and Mark A. Fulks, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

                      Procedural History and Factual Background

        Although the specific facts of the underlying crime were not necessary in the direct
appeal of this case, we glean that the petitioner, armed with a weapon, robbed a convenience
store clerk. State v. Robert L. Yates, No. M2006-02278-CCA-R3-CD (Tenn. Crim. App., at
Nashville, June 6, 2008). On direct appeal, the petitioner challenged the denial of his motion
to suppress and the admission of a photo identification. This court noted that “[t]he subject
of the motion to suppress was an incriminating statement made by the [petitioner] to police
officers in which he acknowledged involvement in the crime.” In the statement, the
petitioner told officers that he had purchased methamphetamine from the store clerk and that
the clerk said that $500 had been taken in the robbery. However, the petitioner “told the
officers that ‘there was a whole lot more than that taken, about $1500 and one ounce of
meth.’” Id. The petitioner later denied he had told police that he was involved in the crime.

        The petitioner was tried before a Warren County jury and found guilty of aggravated
robbery. He was later sentenced to a term of thirty years in the Department of Correction.
As noted, the petitioner filed a direct appeal to this court, but relief was denied. Id. No
permission to appeal was filed with the Tennessee Supreme Court. Thereafter, the petitioner
filed a timely petition for post-conviction relief asserting, among other numerous grounds,
that he was denied the effective assistance of counsel at trial and on appeal. A motion for
recusal of the post-conviction court was filed and denied, as was a motion for interlocutory
appeal on the issue. Subsequently, a hearing was held on the post-conviction petition. At
the hearing, multiple witnesses were called to testify.

        The first witness called by the petitioner was Ervin Dixon, the transport officer who
transported the petitioner from the Department of Correction back to the Warren County jail
for his trial. He indicated that the petitioner was picked up around midnight for the transport.
Although he recalled no specific details, he testified that, in the normal course of his duties,
if a transportee is on medication at the Department of Correction, those medications are
transported with a defendant.

       The next witness called to testify was trial counsel. She testified that she was
appointed to represent the petitioner and that this was the first case she had ever taken to trial.
However, she made clear that she had handled numerous other cases for criminal defendants
and had worked at the attorney general’s office for thirteen months prior to accepting this
case. Trial counsel stated that she met with the petitioner on several occasions, but that she
was somewhat hampered in her efforts because the petitioner begged her not to have him
transported to the Warren County Jail, where he claimed he had been raped. She also
indicated that the petitioner did not make her job of preparing the case easy, because he
admitted to her that he committed the crime, used the knife that was found to do so, and
confessed his actions to the police.

       Trial counsel testified that she received discovery, including a copy of the indictment,
which she reviewed with the petitioner. She acknowledged that she did not visit the crime
scene or interview the victim, but she added that she saw nothing to be gained from doing
so as her statements were included in discovery. Trial counsel was unable to recall which
witnesses she had interviewed, nor did she recall being told about a possible alibi witness.

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Regardless, she would have been unable to utilize an alibi witness, as the petitioner told her
he had committed the crime. She did recall that the petitioner gave her a list, which was
several pages thick, filled with names and phone numbers. However, he did not inform her
what these alleged witnesses would testify to, and she chose not to go on a “goose chase” by
randomly interviewing them.

       With regard to the alleged weapon used in the case, the defendant acknowledged to
her that the knife found was the weapon he had used to commit the crime. As such, she did
not believe it proper to cross-examine witnesses with regard to its discovery because she felt
there was nothing to be gained by it. She also testified that she saw no need to file a motion
for change of venue, despite the fact that the petitioner had been before the trial court
multiple times on various other charges.

       Trial counsel testified that she was aware that the petitioner had been in a mental
health facility on a prior occasion, but she did not discuss it with him. She did request, and
was granted, a psychological evaluation. After the examination, the petitioner was found
competent to stand trial. She further recalled that the petitioner told the examiner that he
knew what he was doing, but he just liked to get out of jail for the testing. Trial counsel
related that, on the day of trial, the petitioner was more focused and alert than she had
previously seen him.

        Trial counsel also discussed her decision not to cross-examine certain witnesses on
various things. For instance, she did extensively question the victim on her initial statement
that the perpetrator was Mexican. However, she strategically chose not to cross-examine the
officers who testified about the composition of the lineup. Moreover, she also chose not to
cross-examine the victim with regard to certain issues, such as how the petitioner actually
took possession of the money, as she was extremely hard to understand. Additionally, she
felt there was nothing to be gained by it, as the petitioner himself had informed the officers
that he committed the crime. Trial counsel did acknowledge that she should have moved for
a judgment of acquittal, but she basically felt she had no good faith reason to do so.

        Trial counsel noted that the evidence against the petitioner was overwhelming. She
acknowledged that she called no defense witnesses, but she reaffirmed that there was simply
no viable defense available based upon the evidence. The petitioner was aware of his right
to testify, but she felt ethically unable to call him as a witness, as he had confessed his guilt
to her. She further did not want to call the petitioner as a witness, because the State did file
notice of intent to use his prior multiple convictions for impeachment purposes. However,
the petitioner was aware that the final decision was his.

       Trial counsel concluded her testimony by noting that the petitioner had been offered

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a “very generous deal” from the State. He was offered a twelve-year sentence in a lower
range than the range which he qualified for. However, the petitioner refused the offer. Trial
counsel testified that she believed that she did her best for the petitioner, but it was her belief
that no attorney could have won the case based upon the evidence.

       The next witness called to testify was appellate counsel. He indicated that following
his appointment for appeal purposes, he spoke with the petitioner on multiple occasions
regarding what to include in the appeal. Appellate counsel indicated that the petitioner
wanted several issues raised, some of which did not relate to the actual trial. The petitioner
was informed that those issues would not be raised. Appellate counsel raised the two issues
which he felt had some merit, but he subsequently received this court’s denial of the appeal.

       At that point, appellate counsel called the petitioner and informed him of the denial,
and a discussion was had regarding whether to appeal to the Tennessee Supreme Court.
Appellate counsel informed the petitioner of the pros and cons of doing do, and the petitioner
told appellate counsel that “I’m going to do an appeal to the Supreme Court.” Appellate
counsel testified that he took that to mean that the petitioner himself was going to perfect the
application to appeal, so he did not file an application. However, he also did not file the
requisite paperwork removing himself from the case.

       After the deadline for filing had passed, appellate counsel received a call from the
petitioner asking the status of the Rule 11 application. Because of the misunderstanding,
appellate counsel immediately called the Board of Professional Responsibility and informed
them of the situation. He was instructed to write down what had occurred and send a letter
to the Board. Additionally, appellate counsel filed a motion to late file the Rule 11
application in which he explained the misunderstanding between himself and the petitioner.
The Tennessee Supreme Court denied the motion. When asked about the merits and facts
of the petitioner’s case, appellate counsel indicated that he saw nothing outstanding which
would have caused the supreme court to have accepted a timely-filed application.

        The final witness to testify was the petitioner himself, who gave a recitation of the
errors he believed that counsel had committed. The petitioner adamantly denied that he had
ever admitted any guilt to either the police or to trial counsel. He complained that trial
counsel failed to interview certain witnesses, including an alleged alibi witnesses and various
State witnesses. He further faulted trial counsel for failing to meet with him to discuss the
case. The petitioner stated that trial counsel had lied about meeting him at the jail, stating
the only meetings between them occurred prior to court dates. He also accused witnesses at
trial of lying and basically challenged the evidence used to convict him.

       The petitioner acknowledged that he had been evaluated for competency, but he

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complained of the result of the examination. He stated that the result found him competent
only so long as he was on his medication. The petitioner then testified that he was deprived
of those medications when he was transported back to the county jail for trial.

       With regard to appellate counsel, the petitioner testified that he had a letter written by
appellate counsel which indicated that counsel was going to file a Rule 11 application to
appeal. The petitioner stated that he never indicated to appellate counsel that he was going
to personally file the application.

       After hearing the evidence presented, the post-conviction court denied relief. The
petitioner has timely appealed that decision, and the matter is properly before this court.

                                           Analysis

       On appeal, the petitioner contends that the post-conviction court erred in denying his
petition for relief. First, he contends that the record establishes that he received ineffective
assistance of counsel at trial. Further, he asserts that his petition should have been granted
based upon appellate counsel’s failure to file a Rule 11 application for permission to appeal
to the Tennessee Supreme Court.

       In order to obtain post-conviction relief, a petitioner must prove that his or her
conviction or sentence is void or voidable because of the abridgement of a right guaranteed
by the United States Constitution or the Tennessee Constitution. T.C.A. § 40-30-103 (2010);
Howell v. State, 151 S.W.3d 450, 460 (Tenn. 2004). A post-conviction petitioner must prove
allegations of fact by clear and convincing evidence. T.C.A. § 40-30-110(f); Tenn. Sup. Ct.
R. 28, § 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009). “Evidence is
clear and convincing when there is no serious or substantial doubt about the correctness of
the conclusions drawn from the evidence.” Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn.
2009) (quoting Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)). In an appeal
of a court’s decision resolving a petition for post-conviction relief, the court’s findings of
fact “will not be disturbed unless the evidence contained in the record preponderates against
them.” Frazier v. State, 303 S.W.3d 674, 679 (Tenn. 2010).

       A criminal defendant has a right to “reasonably effective” assistance of counsel under
both the Sixth Amendment to the United States Constitution and Article I, Section 9, of the
Tennessee Constitution. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). The right to
effective assistance of counsel is inherent in these provisions. Strickland v. Washington, 466
U.S. 668, 685-86 (1984); Dellinger, 279 S.W.3d at 293. To prove ineffective assistance of
counsel, a petitioner must prove both deficient performance and prejudice to the defense.
Strickland, 466 U.S. at 687-88 (1984). Failure to satisfy either prong results in the denial of

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relief. Id. at 697.

        For deficient performance, the petitioner must show that “counsel’s representation fell
below an objective standard of reasonableness” under prevailing professional norms, despite
a “strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 687-89. “In other words, the services rendered or the advice
given must have been below ‘the range of competence demanded of attorneys in criminal
cases.’” Grindstaff, 297 S.W.3d at 216 (quoting Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975)). The petitioner must prove that counsel made errors so serious that counsel was not
functioning as “counsel” guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687.
When reviewing trial counsel’s performance for deficiency, this court has held that a
“petitioner is not entitled to the benefit of hindsight, may not second-guess a reasonably
based trial strategy by his counsel, and cannot criticize a sound, but unsuccessful, tactical
decision made during the course of the proceeding.” Adkins v. State, 911 S.W.2d 334, 347
(Tenn. Crim. App. 1994). The reviewing court “must make every effort to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s conduct, and to
evaluate the conduct from the perspective of counsel at that time.” Howell v. State, 185
S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689). However, “deference to
tactical choices only applies if the choices are informed ones based upon adequate
preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

        Prejudice in turn requires proof of “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. In Strickland, the Supreme Court noted that “[a]n error by counsel, even
if professionally unreasonable, does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment.” Id. at 691. The court clarified that
prejudice “requires showing that counsel’s errors were so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable.” Id. at 687. “The defendant 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.” Id. at 694.

        A claim of ineffective assistance of counsel raises a mixed question of law and fact.
Burns, 6 S.W.3d at 461; Grindstaff, 297 S.W.3d at 216. Consequently, this court reviews the
trial court’s factual findings de novo with a presumption of correctness, unless the evidence
preponderates against the trial court’s factual findings. Grindstaff, 297 S.W.3d at 216. But
the trial court’s conclusions of law on the claim are reviewed under a purely de novo
standard with no presumption of correctness. Fields v. State, 40 S.W.3d 450, 458 (Tenn.
2001).



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       I. Trial Counsel

        The petitioner denotes a myriad of errors allegedly committed by trial counsel, which
 he asserts amount to deficient performance on her part and, further, that those errors affected
the outcome of his trial. Basically, these alleged errors fall in the categories of failure to
investigate, failure to interview witnesses, and failure to prepare a viable defense.
Specifically, he contends that trial counsel: (1) failed to visit the crime scene; (2) failed to
interview State witnesses, including police officers and the victim; (3) failed to challenge a
suggestive photo lineup identification either in a motion to suppress or with effective cross-
examination of witnesses; (4) failed to file a motion to suppress the knife found at the scene;
and (5) failed to interview possible defense witnesses, including an alleged alibi witness.

       In denying relief, the post-conviction court stated:

               What I’ve heard today is a lot of testimony by [the petitioner] and by
       [trial counsel] and by [appellate counsel], especially by [the petitioner], that a
       lot of different things could have been done, should have been done that would
       have made a difference. The problem is I don’t have anything concrete to
       show that there is any eye witness that was an alibi or . . . somebody there that
       would have said, no, it wasn’t me. I’ve heard none of that. I’ve heard [the
       petitioner’s] allegations about that. But quite frankly, even though [trial
       counsel] might not have had the most experience of any attorney, she had
       criminal cases before and I quite frankly, I don’t find it reasonable, having
       seen her practice and [heard] her testimony today to think that if you told her
       that there was an alibi witness and that you didn’t do it, to contact this witness,
       that that would have been the first thing she did. I don’t think [trial counsel]
       is lying to me about what [the petitioner] told her and her interactions with
       [him].

               I remember enough about the trial to remember that [the petitioner] was
       not - - didn’t appear to be in any way incompetent at the time of the trial or
       unable to assist or was off his medications or anything like that and [trial
       counsel], quite frankly, confirms what I thought I saw in that [the petitioner]
       was focused and was able to help and select jury members and a jury panel and
       so forth.

       After review of the record, we conclude that the petitioner has failed to put forth any
evidence which preponderates against the post-conviction court’s findings. Our review
reveals that the petitioner’s arguments are in large part based upon his own version of the
events which occurred. For instance, his assertions that trial counsel failed to meet with him,

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that he did not confess to police or trial counsel, that he informed trial counsel that he had
an alibi, and that he never told trial counsel that the knife in evidence was the knife that he
used. The post-conviction court, based upon its findings, clearly did not accredit this
testimony from the petitioner. Rather, the court specifically noted that it believed the version
presented trial counsel. As has been noted on multiple occasions, it is not the province of
this court to reweigh or re-evaluate credibility determinations made by the finder of fact. See
State v. Evans, 108 S.W.3d 231, 236 (Tenn. 2003).

        Trial counsel specifically testified that the petitioner told her he had committed the
crime and that she recalled no possible alibi ever mentioned. She stated that she met with
the petitioner on multiple occasions, reviewed discovery with him, and generally discussed
the case with him, including the plea offer from the State. Trial counsel chose not to
interview certain State witnesses because she felt there was nothing to be gained from doing
so, as she had reviewed discovery and discussed with the district attorney general what the
witnesses would testify to. She testified that her decisions not to address certain issues on
cross-examination were tactically motivated. See Adkins, 911 S.W.2d at 347 ( A “petitioner
is not entitled to the benefit of hindsight, may not second-guess a reasonably based trial
strategy by his counsel, and cannot criticize a sound, but unsuccessful, tactical decision made
during the course of the proceeding.”) Trial counsel fully acknowledged that she was unable
to present much of a defense for the petitioner; however, that was based not upon her
deficient performance, but rather upon the extensive evidence against the petitioner, as well
as his confession to her of guilt. On these facts, we cannot conclude that the post-conviction
court erred.

       Moreover, the petitioner also fails to establish his claims of failing to discover and
interview witnesses based upon a failure to establish prejudice. The petitioner did not
present testimony from any of the alleged witnesses at the post-conviction hearing. Thus, he
presented no evidence, other than bare allegations, as to what trial counsel could have
discovered or done differently. It is well-established that in order to establish the prejudice
prong of ineffective assistance of counsel in these type of claims, the petitioner is required
to produce witnesses at the post-conviction hearing who present favorable and material
testimony. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990) (when a
petitioner contends that trial counsel failed to discover, interview, or present witnesses in
support of his defense, these witnesses should be presented by the petitioner at the
evidentiary hearing in order to show prejudice). The petitioner has failed to establish his
allegations by clear and convincing evidence as required by Tennessee Code Annotated
section 40-30-110(f). Accordingly, relief was properly denied upon this ground.

       II. Appellate Counsel



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        Next, the petitioner challenges the effectiveness of appellate counsel based upon his
failure to file a Rule 11 application with the Tennessee Supreme Court following the denial
of the direct appeal by this court. The petitioner contends that this lack of action by appellate
counsel was deficient and that he suffered prejudice because he was put “at a disadvantage
in that he was not given even the slightest opportunity to get his issues before the Tennessee
Supreme Court nor was he afforded the notice required by the rules so he could prepare a
pro-se appeal.” The petitioner addresses this under the context of ineffective assistance of
counsel and asserts he is entitled to a new trial.

       The petitioner is correct in that Tennessee Rules of Appellate Procedure 11 sets forth
the requirements for appealing a ruling from the Court of Criminal Appeals to the Tennessee
Supreme Court. That court, exercising its own discretion, may grant or deny permission to
hear the appeal; review is not automatic. A party is allowed sixty days from the date of the
entry of the judgment in the Court of Criminal Appeals to file the application. There is no
dispute that this did not occur in this case. Nor did appellate counsel give the petitioner
written notice that he intended to withdraw in accordance with Sup. Ct. R. 14.

       At this juncture we again note that the petitioner raised this issue in the context of
ineffective assistance of counsel and sought a new trial, rather than a delayed appeal. The
post-conviction court addressed the issue in the context it was raised and found that appellate
counsel was in fact deficient. The court noted that it “should have been more clear with
[appellate counsel] about who was going to file the application to the Supreme Court. Once
you’re in, you’re in as the attorney and [you] probably should have done that, I’ll grant you
that.” However, the court found that no prejudice resulted from the error, stating

               I don’t think that would have made any difference. I don’t think they
       would have taken the case and if they . . . [did], I can’t imagine anything - -
       them overturning the Court of Criminal Appeals because, quite frankly, I agree
       with [trial counsel], it was a pretty damning case to the [petitioner] based on
       the statements that he had made and the eye witness testimony. It wasn’t good.

              ....

              [W]hile [appellate counsel] should have filed a notice to the Supreme
       Court for permission to appeal, I don’t think that would have changed the
       outcome of the case. I don’t think there is anything that I’ve seen here today
       that would have changed their mind.

       Nothing in the record preponderates against this finding. Trial counsel testified that
as soon as he became aware of the error, he notified the Board of Professional Responsibility.

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Moreover, he, of his own volition, filed for permission to late file the Rule 11 application
with the supreme court. The court chose to deny that request. Trial counsel testified that,
in his opinion, there was nothing outstanding in the petitioner’s case which would have
merited the Tennessee Supreme Court’s acceptance of the application, much less a reversal
on any issue. Thus, as noted by the post-conviction court, the outcome of the proceeding
would not “more probably than not” have been different had the error not occurred. Thus,
no relief is warranted.

                                     CONCLUSION

       Based upon the foregoing, the denial of post-conviction relief is affirmed.




                                                   _________________________________
                                                   JOHN EVERETT WILLIAMS, JUDGE




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