         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs November 2, 2004

                     MIKO T. BURL v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                           No. P-27215 Bernie Weinman, Judge



                  No. W2004-00327-CCA-R3-PC - Filed December 23, 2004



The Petitioner, Miko T. Burl, was convicted of aggravated assault, aggravated burglary, and
especially aggravated robbery, and the trial court sentenced him to an effective sentence of twenty-
five years. On direct appeal, this Court vacated the Petitioner’s aggravated assault conviction, but
affirmed all of the Petitioner’s other convictions. The Petitioner subsequently filed a petition for
post-conviction relief alleging, among other things, ineffective assistance of counsel. After a
hearing, the post-conviction court dismissed the Petitioner’s petition. On appeal, the Petitioner
contends that the post-conviction court erred because the Petitioner’s trial counsel was ineffective.
Finding no reversible error, we affirm the judgment of the post-conviction court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JERRY L. SMITH and J.C.
MCLIN JJ., joined.

C. Anne Tipton, Memphis, Tennessee, for the appellant, Miko T. Burl.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Emily Campbell, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION
                                             I. Facts

        On February 7, 2000, a Shelby County jury convicted the Petitioner of aggravated assault,
aggravated burglary, and especially aggravated robbery. The trial court sentenced the Petitioner, a
Range I standard offender, to four years for the aggravated assault conviction, four years for the
aggravated burglary conviction, and twenty-five years for the especially aggravated robbery
conviction, and ordered these sentences to run concurrently. This Court summarized the underlying
facts of the Petitioner’s case on direct appeal as follows:
        On September 22, 1998, Josephine Woodson, the eighty-six-year-old victim, and her
        daughter-in-law, Linda Fly, were at Ms. Woodson’s home in Memphis. Ms.
        Woodson heard someone at the door. Thinking it was her son, she got up to let him
        in. When she got up, she was met by the Appellant, who was holding a gun in her
        face and demanding money. Ms. Woodson grabbed the gun, and began to “tussle all
        over the floor” with the Appellant. The Appellant threw Ms. Woodson against a
        heater, breaking her ribs. He fled the home after taking $230 from a pocket of Ms.
        Woodson’s clothing. During the robbery, the Appellant dropped a pager. Based
        upon this fact, the Appellant was developed as a suspect. During the investigation,
        two photo lineups were shown to Ms. Woodson and Ms. Fly, and both positively
        identified the Appellant as the robber.

State v. Miko T. Burl, No. W2000-02074-CCA-R3-CD, 2002 WL 1483207, at *1-2 (Tenn. Crim.
App., at Jackson, Jan. 28, 2002), perm. app. denied (Tenn. June 24, 2002).

         On direct appeal, this Court held that the Petitioner’s convictions for both aggravated assault
and especially aggravated robbery violated double jeopardy principles. Therefore, this Court vacated
the Petitioner’s conviction for aggravated assault. The Tennessee Supreme Court denied the
Petitioner’s request for permission to appeal. The Petitioner filed a petition for post-conviction relief
alleging, among other things, that he was denied effective assistance of counsel. After a hearing, the
post-conviction court dismissed the petition, and the Petitioner filed a timely notice of appeal. On
appeal, the Petitioner asserts that the post-conviction court erred when it dismissed his petition based
on its finding that there was no merit to the Petitioner’s claim that he was denied effective assistance
of counsel.

         The following evidence was presented at the post-conviction hearing: The Petitioner testified
that he was convicted in 2000 on three charges and was serving time for those convictions with the
Tennessee Department of Corrections. He said that he was arrested on those charges in 1999 and
that he was appointed a public defender in general sessions court for his preliminary hearing. He
testified that another public defender, William Moore, was appointed to represent him in Division
II. The Petitioner explained that Moore represented him from March until November of 1999. The
Petitioner said that, on November 30, 1999, his scheduled trial date, the trial court relieved Moore
from representing him and instructed the Petitioner to return to court for his trial on January 24,
2000, with an attorney. The Petitioner said that, prior to November 30, 1999, he began working for
a temporary service in an attempt to get the money to hire an attorney. He explained that he did not
have enough money to hire an attorney until “a couple of days” before his January 24, 2000, court
date. He testified that, a couple of days before January 24, 2000, he spoke to a lawyer, Marvin
Ballin, who came with him to court on January 24, 2000. The Petitioner said that, after Ballin came
with him to court on the 24th, he refused to represent him and told the Petitioner to come to his
office to obtain a refund of his retainer. The Petitioner said that he was taken into custody when he
came to court on the 24th, and stayed in custody until 12:30 p.m. that same day. Thereafter, the court
released him to find an attorney and told him to be back at court by 1:30 p.m., with an attorney


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prepared to represent him.

        The Petitioner testified that he contacted Brent Stein (“Counsel”) to represent him, and, after
he spoke with Counsel for twenty to thirty minutes, Counsel came back to court with the Petitioner
at 1:30 p.m. The Petitioner said that he and Counsel did not discuss strategies or potential witnesses
on that day. He said that Counsel asked for, and was granted, a continuance, and the trial was set
for February 2, 2000. The Petitioner testified that the court held him in contempt and he remained
in custody for ten days. He said that Counsel came to visit him once and they spoke about the case
for approximately fifteen minutes, when they discussed, among other things, how Counsel could
contact the Petitioner’s witnesses. Additionally, the Petitioner said that Counsel met with him “right
before [he] went to trial.”

        The Petitioner testified that Counsel never discussed with him any discovery that he had
received from the State, any pretrial motions that needed to be filed, or any defenses. The Petitioner
said that his meeting with Counsel on the day of trial lasted between ten and fifteen minutes and that
they discussed picking a jury and the Petitioner’s witnesses. The Petitioner said that Counsel had
an assistant with him at this meeting. He testified that, at his trial, he testified on his own behalf, and
Counsel never reviewed what his testimony would be with him prior to his testifying. The Petitioner
said that Counsel never told him if he investigated the crime scene. The Petitioner said that one of
the two eyewitnesses misidentified him at the preliminary hearing, and the other witness said that
he looked like the person, but testified that the intruder wore a hat.

        The Petitioner said that Counsel filed a motion to suppress the two witnesses’ identification
of him, and that the trial judge should have granted that motion. The Petitioner testified that Counsel
never told him whether he obtained a video tape of the preliminary hearing, and Counsel never talked
to the State’s witnesses prior to trial. The Petitioner said that Counsel cross-examined the witnesses
against him and called his alibi witnesses. He testified that Counsel represented him on appeal and
filed a brief on his behalf. He said he filed a complaint with the Bar because Counsel did not visit
him to discuss his appeal. Further, he testified that his convictions were affirmed in part and
reversed in part, but he was currently incarcerated on the twenty-five year sentence for the especially
aggravated robbery conviction. The Petitioner said that Counsel filed a Rule 11 application, but it
was denied by the Supreme Court.

        On cross-examination, the Petitioner said that he became displeased with his first attorney
and so he had him dismissed. He said that he was charged with these crimes on February 25, 1999,
and first appeared in court on March 17, 1999. He said that, on his trial date in November of 1999,
he told the judge that he wanted to hire another attorney. The Petitioner said that he hired another
attorney who did not want to represent him and returned his retainer. The Petitioner testified that
he hired Counsel, and Counsel requested a continuance that the trial court granted. The Petitioner
conceded that Counsel spoke with him, got his file from his first attorney, and spoke with his alibi
witnesses. The Petitioner also conceded that Counsel tried “in earnest” to get the photographic
identification suppressed.



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         Counsel testified that he currently practices criminal law exclusively in Shelby County and
had done so since 1963. Counsel testified that he had represented defendants charged with
aggravated burglary or especially aggravated robbery in over fifty cases. Counsel testified that he
represented the Petitioner, but he could not locate his file on the matter. He said that the Petitioner
came into his office and told him that two other attorneys refused to represent him. He said that the
Petitioner had a problem with the trial judge, who told him to find an attorney, and the Petitioner
started crying when telling Counsel about the situation. Counsel testified that he began representing
the Petitioner two weeks prior to the Petitioner’s trial. He said that he had full discovery, had
received the Petitioner’s file from his previous attorney, and he knew what the issues were. Counsel
testified that he investigated the alibi witnesses and that he was ready to try the case. Counsel
testified that he could not remember whether he listened to the tape from the Petitioner’s preliminary
hearing. He said that he did not discuss defense strategies with the Petitioner because the Petitioner
said that he was not at the scene of the crime, therefore, the defense was one of mistaken
identification. Counsel said that he argued mistaken identification to the jury.

        Counsel said that he filed a motion to suppress the photographic identification, but it was
denied. He said that he argued that issue on appeal, but the Court denied that issue. Counsel said
that, even though he called the alibi witnesses, the jury did not believe the Petitioner’s alibi witnesses
because the jury found the Petitioner guilty. Counsel testified that he believed that he was prepared
for the Petitioner’s trial.

        On cross-examination, Counsel testified that he did not recall how many times he spoke with
the Petitioner, but he talked to him an “adequate enough time to understand what his position [was]
and how [he] was going to proceed to trial.” Counsel said that it was less than two weeks between
the time that he took the Petitioner’s case and when the case was tried. Counsel stated that he talked
to every witness before he called them to testify. Counsel said that he cross-examined the witness
who changed her story and that he brought that fact out before the jury. Counsel testified that the
Petitioner told him that he was not guilty and that he would not accept any kind of offer. Counsel
said that he never visited the crime scene. He said that the Petitioner testified on his own behalf and
made a good witness. Counsel testified that, after the trial, he did not discuss the issues for appeal
with the Petitioner. Counsel testified that he did not raise the issue that the Court of Criminal
Appeals reversed. He also said that he did not hire a private investigator in this case because he was
familiar with the facts, the theory, and the witnesses.

        The post-conviction court took this evidence and the arguments of counsel under advisement
and, in its order denying the Petitioner post-conviction relief, the post-conviction court stated:

        This case presents a somewhat unusual set of circumstances. The [Petitioner] was
        represented by a member of the public defender’s office at his preliminary hearing
        and another member of the public defender’s office was appointed to represent him
        in the trial court. According to the [P]etitioner’s testimony this attorney was
        appointed in March of 1999. In November of 1999 at the joint request of the
        [Petitioner] and the public defender the attorney was relieved of his responsibility to


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       represent the [Petitioner] at trial and the trial court ordered the [Petitioner] to return
       to court in January 2000 with a private attorney ready to go to trial. The [P]etitioner
       stated that he was working for a temporary service and was unable to earn enough to
       pay an attorney a retainer until two days prior to the trial date. He stated that he paid
       a retainer to one attorney and when that attorney found out that he would have to be
       ready for trial on such short notice he refunded the [P]etitioner’s money and the
       [P]etitioner located another attorney who did represent him at trial. On the date when
       the case was set for trial the attorney requested a continuance, the trial judge granted
       a ten-day continuance and [the Petitioner] was held in contempt of court and placed
       in custody.

               In the interim the trial attorney filed a motion to suppress the photo
       identification which motion was heard and overruled by the trial court.
       Unfortunately the trial attorney could not locate his file prior to the hearing on this
       petition for post-conviction relief.

              The Court finds from all the evidence presented at this hearing that the trial
       attorney was able to obtain and fully review the public defender’s file prior to trial.
       He discussed the case with the [Petitioner] and interviewed the alibi witnesses. He
       developed a defense of mistaken identification and at trial he put on proof of an alibi,
       and he cross-examined the State’s witnesses concerning their identification.

               ....

               The Court finds that the trial attorney competently cross-examined the State’s
       witnesses concerning their identification of the [Petitioner] and in addition put on all
       the alibi proof available to him. . . . The Court finds that under the time constraints
       involved in this case the attorney more than adequately represented his client.

               ....

              By holding the [Petitioner] in contempt obviously the trial court found that
       the [Petitioner] did not exercise due diligence in obtaining private counsel which
       caused additional delays in the trial. It would appear that the [Petitioner] was
       responsible for the short period of time that defense counsel had to prepare for trial.

                The Court finds that the advice given and the services rendered by the
       [Petitioner’s] counsel w[ere] within the range of competency demanded by an
       attorney in a criminal case and that Mr. Stein’s representation of the [Petitioner] at
       his trial complied with the requirements set out by the Supreme Court of Tennessee
       in Baxter v. Rose, 523 S.W.2d 930.

It is from this order of the post-conviction court that the Petitioner now appeals.


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                                             II. Analysis

        On appeal, the Petitioner contends that the post-conviction court erred by not granting him
post-conviction relief because his trial counsel was ineffective. Specifically, the Petitioner asserts
that Counsel’s assistance was ineffective because Counsel failed to establish a relationship with him
and because Counsel failed to adequately investigate the Petitioner’s case. In order to obtain
post-conviction relief, a petitioner must show that his or her conviction or sentence is void or
voidable because of the abridgment of a constitutional right. Tenn. Code Ann. § 40-30-103 (2003).
The petitioner bears the burden of proving factual allegations in the petition for post-conviction relief
by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f). A post-conviction court’s
factual findings are subject to a de novo review by this Court; however, we must accord these factual
findings a presumption of correctness, which is overcome only when a preponderance of the
evidence is contrary to the post-conviction court’s factual findings. Fields v. State, 40 S .W.3d 450,
456 (Tenn. 2001). A post-conviction court’s conclusions of law are subject to a purely de novo
review by this Court, with no presumption of correctness. Id. at 457.

        The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and Article I, section 9, of the Tennessee Constitution.
State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999);
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). This right to representation includes the right
to “reasonably effective” assistance. Burns, 6 S.W.3d at 461. The Tennessee Supreme Court has
held that the issue of ineffective assistance of counsel is a mixed question of law and fact and, as
such, is subject to a de novo review. Id.

        In reviewing a claim of ineffective assistance of counsel, this Court must determine whether
the advice given or services rendered by the attorney are within the range of competence demanded
of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail on a claim of ineffective
assistance of counsel, a petitioner must show that “counsel’s representation fell below an objective
standard of reasonableness,” Strickland v. Washington, 466 U.S. 668, 688 (1984), and that this
performance prejudiced the defense, resulting in a failure to produce a reliable result. Id. at 687;
Cooper v. State, 849 S.W.2d 744, 747 (Tenn. 1993). To satisfy the requirement of prejudice, a
petitioner must show a reasonable probability that, but for counsel’s unreasonable error, the fact
finder would have had reasonable doubt regarding the petitioner’s guilt. Strickland, 466 U.S. at 695.
This reasonable probability must be “sufficient to undermine confidence in the outcome.” Id. at 694;
see also Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994). In cases involving a guilty plea or a plea
of nolo contendere, the petitioner must show prejudice by demonstrating that, but for counsel’s
errors, he would not have pleaded guilty but would have insisted upon going to trial. See Hill v.
Lockhart, 474 U.S. 52, 59 (1985); Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991).

        When evaluating an ineffective assistance of counsel claim, the reviewing court should judge
the attorney’s performance within the context of the case as a whole, taking into account all relevant
circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim.
App. 1988). The reviewing court must evaluate the questionable conduct from the attorney’s


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perspective at the time. Strickland, 466 U.S. at 690; Cooper, 849 S.W.2d at 746; Hellard v. State,
629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court must be highly deferential and
“should indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Burns, 6 S.W.3d at 462. Counsel should not be deemed to have
been ineffective merely because a different procedure or strategy might have produced a different
result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). The fact that a
particular strategy or tactic failed or hurt the defense does not, standing alone, establish unreasonable
representation. House v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (citation omitted); Thomas
Brandon Booker v. State, No. W2003-00961-CCA-R3-PC, 2004 WL 587644, at *4 (Tenn. Crim.
App., at Jackson, Mar. 24, 2004), no perm. app. filed. However, deference to matters of strategy and
tactical choices applies only if the choices are informed ones based upon adequate preparation.
House, 44 S.W.3d at 515.

         After throughly reviewing the record, we conclude that the Petitioner was not denied
effective assistance of counsel. The Petitioner testified that he was found indigent and the trial court
appointed an attorney to represent him. The Petitioner waited until the day of his trial to inform the
trial court that he was dissatisfied with his attorney and that he wished to hire another attorney. The
trial court gave the Petitioner two months to find another attorney. The Petitioner waited again until
the day of his trial to find another attorney, Counsel, who agreed to represent him. Counsel asked
for, and was granted, a continuance to prepare for trial, but the Petitioner was found in contempt of
court for not having his attorney prepared for trial on the trial date. Despite the short one-week time
period that Counsel had to prepare for trial, Counsel filed a motion to suppress a photographic
lineup, met with the Petitioner, the Petitioner’s witnesses, and prepared for trial. The Petitioner’s
defense was one of mistaken identification, and he provided alibi witnesses who testified. The
Petitioner also testified on his own behalf. The fact that the jury accredited the testimony of the
State’s witnesses, over the testimony of the Petitioner, does not prove that Counsel was ineffective.
Counsel testified that he was fully prepared to defend the Petitioner at trial, and he defended the
Petitioner to the best of his ability. We conclude, as did the post-conviction court, that the Petitioner
has failed to prove by clear and convincing evidence that Counsel’s representation fell below an
objective standard of reasonableness.

                                           III. Conclusion

        In accordance with the foregoing reasoning and authorities, we affirm the post-conviction
court’s judgment dismissing the Petitioner’s petition for post-conviction relief.


                                                        ___________________________________
                                                        ROBERT W. WEDEMEYER, JUDGE




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