        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs March 05, 2014

                   DARIUS JONES v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                     No. 0104380    J. Robert Carter, Jr., Judge




                  No. W2013-01004-CCA-R3-PC - Filed June 9, 2014


Petitioner, Darius Jones, appeals from the trial court’s judgment which denied post-
conviction relief following an evidentiary hearing. Petitioner argues on appeal that his trial
counsel rendered ineffective assistance of counsel but only argues one factual allegation of
ineffective assistance. Petitioner asserts that he is entitled to post-conviction relief because
trial counsel failed to include in his motion for new trial the ground that the trial court
erroneously denied the motion to suppress Petitioner’s statement to police. After a thorough
review of the record and the briefs of the parties, we affirm the judgment of the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J AMES C URWOOD
W ITT, J R. and R OBERT W. W EDEMEYER, JJ., joined.

Jeff Woods, Memphis, Tennessee, for the appellant, Darius Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Josh Corman, Assistant District
Attorney General, for the appellee, the State of Tennessee.

                                          OPINION

Background

       Following a jury trial in the Shelby County Criminal Court, Petitioner was convicted
of one count of felony murder, four counts of aggravated robbery, three counts of attempted
especially aggravated robbery, two counts of attempted aggravated robbery, and one count
of aggravated burglary. Petitioner received an effective sentence of life imprisonment plus
eighty-one years. On appeal, this court affirmed all of the judgments of conviction and the
sentence of life imprisonment for felony murder but reversed the sentences for the remaining
convictions and remanded for re-sentencing. State v. Darius Jones, No. W2003-02225-CCA-
R3-CD (Tenn. Crim. App. Dec. 15 2004) (No citation to WestLaw was found.) (“Darius
Jones I”).

        Upon remand, the trial court reduced each sentence to the minimum possible sentence
and again ordered consecutive sentencing but failed to state specific findings justifying
consecutive sentencing. On appeal, the length of the sentences was affirmed but the case was
again remanded for the trial court to make specific findings as to why the sentences should
be served consecutively. State v. Darius Jones, No. W2008- 00101-CCA-R3-CD, 2009 WL
1741509 (Tenn. Crim. App. June 16, 2009) (“Darius Jones II”). On the second remand, the
trial court again imposed consecutive sentences and made specific findings and, on appeal
this court affirmed the judgments. State v. Darius Jones, No. W2010- 01080-CCA-R3-CD,
2011 WL 2162986 (Tenn. Crim. App. May 26, 2011) (“Darius Jones III”). Petitioner timely
filed his pro se petition for post-conviction relief, and an amended petition was filed after
counsel was appointed to represent Petitioner.

       A detailed summary of the facts leading to the convictions is not necessary for
disposition of the present appeal. A summary of those facts can be found in this Court’s
opinion in Darius Jones I.

Post-Conviction Hearing

       As pertinent to the precise issue raised on appeal, the following evidence was
presented at the post-conviction hearing. Trial counsel testified that Petitioner made an
incriminating statement after his arrest. Trial counsel filed a pre-trial motion to suppress.
An evidentiary hearing was held and the trial court denied the motion to suppress. Trial
counsel admitted that he did not include in the motion for new trial any ground for relief
based upon denial of the motion to suppress. Trial counsel’s strategy was that he did not
include an issue in the motion for new trial, and therefore did not preserve the issue for
plenary review on appeal, if the proposed issue was not meritorious.

       The actual motion to suppress evidence was not made an exhibit or even presented to
be viewed or identified by trial counsel or Petitioner during the post-conviction hearing.
Petitioner presented no proof at the post-conviction hearing as to any legal argument that
could have been made to reverse the trial court if the suppression issue had been preserved
for appeal. In his brief in the appeal sub judice, Petitioner makes no argument regarding any
possible meritorious argument the suppression issue would have had if trial counsel had
preserved the issue for appellate review by including it in the motion for new trial.

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      Petitioner testified that he remembered the hearing on the motion to suppress his
statement. The entirety of Petitioner’s relevant testimony regarding the omission of the
suppression issue from the motion for new trial is the following:

        Q.    And do you recall having the evidentiary hearing on your motion to
              suppress your statement before Judge Colton?

        A.    Yeah.

        Q.    And do you recall when that was? Obviously it was prior to trial but
              in relation to the trial?

        A.    Maybe about two or three days before.

        Q.    And have you reviewed your motion for new trial?

        A.    No.

        Q.    You have not reviewed your motion for new trial?

        A.    No.

        Q.    But you heard Mr. Copeland testify that that denial of your motion
              to suppress was not included in your motion for new trial?

        A.    Yes.

        Q.    And you and I’ve talked and you’ve done legal research while
              you’ve been incarcerated. Correct?

        A.    Yes.

        Q.    And that was something you felt should have been included in your
              motion for new trial?

        A.    Yes.

        Q.    And that wasn’t at issue for - - that wasn’t an issue for appeal.
              Correct?



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        A.      No.

        Q.      And that’s because it wasn’t in the motion for new trial?

        A.      Yes.

        In its order denying post-conviction relief the trial court found that “No evidence was
offered to suggest, in any way, that the denial of the motion [to suppress statement] was
erroneous.” The post-conviction hearing court further concluded, “it is not enough to
complain that the Motion to Suppress was not included in his appeal. Petitioner offered no
proof to suggest that the denial of the Motion to Suppress was in error, or in any way related
to the performance of his trial counsel.”

Analysis

        In order to sustain a petition for post-conviction relief, a Petitioner must prove his or
her allegations of fact by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f).
When a petitioner is basing a claim for relief upon trial counsel rendering ineffective
assistance of counsel, the petitioner has the burden to show that trial counsel’s performance
was deficient, and that the petitioner was prejudiced by trial counsel’s deficient performance.
Mobley v. State, 397 S.W.3d 70, 80 (Tenn. 2013). In order to demonstrate prejudice, the
petitioner “must establish a reasonable probability that but for counsel’s errors the result of
the proceeding would have been different.” Vaughn v. State, 202 S.W.3d 106, 116 (Tenn.
2006). “Failure to establish either deficient performance or prejudice necessarily precludes
post-conviction relief.” Mobley, 397 S.W.3d at 80.

       We fully concur with the post-conviction trial court’s findings and conclusions quoted
above. There is absolutely no evidence in the record, and no legal argument by Petitioner,
to show that the trial court erred by denying the motion to suppress. Therefore, based upon
the record available to us we must conclude that if the suppression motion had been included
within the motion for new trial and presented as an issue on appeal, the issue would have
been found meritless. We do not conclude that trial counsel rendered deficient performance.
However, even if he did, no prejudice could have occurred.

        Accordingly, the judgment of the trial court denying the petition for post-conviction
relief is affirmed.

                                                     _________________________________
                                                     THOMAS T. WOODALL, JUDGE



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