                                                                                           03/24/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                January 28, 2020 Session

              JEFFREY T. SILER, JR. v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Knox County
                         No. 90960 G. Scott Green, Judge
                     ___________________________________

                            No. E2019-00018-CCA-R3-PC
                       ___________________________________


       Over twenty years ago, a Knox County jury found Petitioner, Jeffrey T. Siler, Jr.,
guilty of first degree felony murder. At the advice of his trial counsel and prior to the
jury trial, the then seventeen year old Petitioner pled guilty to attempted especially
aggravated robbery which formed the basis for the felony murder charge. Petitioner
received an eight-year sentence for the attempted especially aggravated robbery charge to
be served concurrently with the life sentence for the felony murder charge. Petitioner’s
convictions were affirmed on direct appeal. See State v. Jeffrey T. Siler, No. E2000-
01570-CCA-R3-CD, 2001 WL 387088 (Tenn. Crim. App. Apr. 17, 2001) perm. app.
denied (Tenn. June 20, 2014) (“Siler I”). On February 13, 2009, Petitioner filed a
petition for post-conviction relief. The post-conviction court summarily dismissed the
petition as untimely. This Court reversed the post-conviction court and remanded for an
evidentiary hearing to determine whether due process tolled the statute of limitations and
to consider Petitioner’s claims regarding his mental condition. See State v. Jeffrey T.
Siler, No. E2009-00436-CCA-R3-PC, 2010 WL 1444511 (Tenn. Crim. App. Apr. 12,
2010), no perm. app. filed (“Siler II”). After conducting a hearing, the post-conviction
court determined that the statute of limitations should have been tolled and that Petitioner
was entitled to a full hearing on his petition for post-conviction relief. After conducting a
full evidentiary hearing, the post-conviction court denied relief and dismissed the
petition. We affirm the judgment of the post-conviction court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and ROBERT H. MONTGOMERY, JR., JJ., joined.

John M. Boucher, Jr., Knoxville, Tennessee, for the appellant, Jeffery T. Siler, Jr.
Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Kevin Allen,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                        OPINION

                            Facts and Procedural Background

        This matter began in the juvenile court of Knox County. The State filed a petition
to transfer Petitioner to criminal court to be tried as an adult. As part of the petition to
transfer, Dr. Leonard Miller performed a psychological exam on Petitioner. Dr. Miller
acknowledged that Petitioner had some mental health issues, but ultimately concluded
that “[t]he test data [did] not indicate a need for placement in a psychiatric facility.” Dr.
Miller reported to the juvenile court that Petitioner could be transferred to “adult court.”
In exchange for “open file discovery,” which included a review of Petitioner’s juvenile
record, trial counsel waived the hearing on the State’s petition to transfer.

        In the opinion on direct appeal, this Court provided a summary of the underlying
facts in this case:

              On February 19, 1998, the fifteen-year-old [Petitioner] and fifteen-
       year-old Lavon Davis were riding with Jason Copley. Davis stated that he
       was “looking for a lick,” meaning someone to rob. Upon seeing fifty-six-
       year-old Tommy Haworth, the victim, walking down the street, they
       decided to rob him. [Petitioner] agreed to take Davis’[s] pistol, and Davis
       and [Petitioner] exited the vehicle and followed the victim to his residence.
       There, [Petitioner] confronted the victim and asked him for money. The
       victim replied that he had none. [Petitioner] then cocked the pistol, and it
       fired. The victim was hit in the face with the bullet and died as a result of
       this gunshot wound.


              [Petitioner] and Davis fled the scene, and [Petitioner] threw the
       empty shell casing into a storm drain. Copley, who had remained in the
       vehicle, stayed at the scene and told someone to call 911.


             [Petitioner] and Davis were subsequently arrested, and [Petitioner]
       confessed his involvement in the offense. In his statement [Petitioner]
       contended the gun went off accidentally during the attempted robbery, and
                                            -2-
       he did not intend to shoot the victim. An analysis of the shell casing found
       in the storm drain and the projectile recovered in the victim’s toboggan
       revealed they were fired from the pistol recovered from Davis’[s] coat
       pocket. [Petitioner’s] fingerprints were also found on the door of the
       victim’s residence.


               [Petitioner] was transferred from juvenile court to the Criminal
       Court for Knox County and indicted in Count 1 for first degree murder
       during the perpetration of an attempted especially aggravated robbery and
       in Count 2 for attempted especially aggravated robbery. On the morning of
       trial [Petitioner] entered a guilty plea to attempted especially aggravated
       robbery, and the case was tried before a jury on the felony murder charge.
       The jury found [Petitioner] guilty of felony murder. [Petitioner] was
       sentenced to concurrent sentences of life for felony murder and eight years
       for attempted especially aggravated robbery.

Siler I, WL 387088, at *1. This Court affirmed the convictions on direct appeal. Id.

       On February 13, 2009, Petitioner filed a petition for post-conviction relief. The
post-conviction court summarily dismissed the petition as untimely. This Court found
that the post-conviction court erred in dismissing the petition without conducting a
hearing. Siler II, WL 1444511, at *7. We remanded to the post-conviction court to hold
a hearing on whether due process required tolling of the statute of limitations and to
consider Petitioner’s claims regarding his mental health. Id.

        Petitioner was appointed counsel who filed a Supplemental/Amended Petition for
Post-Conviction Relief. After holding a hearing, the post-conviction court determined
that the statute of limitations should be tolled. 1

                            Post-Conviction Evidentiary Hearing

       On October 10, 2018, the post-conviction court held an evidentiary hearing on the
merits of Petitioner’s claims.2 Petitioner’s trial counsel was the only witness at the
       1
         By order enter on December 18, 2013, after the filing of the post-conviction pleadings,
the post-conviction court first determined that Petitioner had been “denied his second tier
appeal” of his direct appeal. The post-conviction court granted Petitioner a stay on his post-
conviction petition while the Tennessee Supreme Court considered a TRAP 11 application for
his 2000 direct appeal. The application was denied on June 20, 2014. State v. Jeffrey T. Siler,
No. E2000-01570-SC-R11-CD.

                                             -3-
hearing. Trial counsel identified a memorandum that he wrote and placed in Petitioner’s
file. The memorandum indicated that trial counsel was aware of Petitioner’s mental
health history, the history of Petitioner’s placement with various institutions and foster
care families, and the numerous medications that Petitioner took. Trial counsel stated
that the juvenile court judge would not deny any motion to transfer to “adult court.” He
testified that “the tradeoff for the transfer as an adult was that you got access not only to
the State’s file, but you got the - - if he did have juvenile history, and believe me,
[Petitioner] did. [Petitioner] had volumes of it. But those were made available to me.”
Trial counsel stated that Petitioner had no juvenile criminal history, only mental health
history. Trial counsel stated that he did not get any consent to waive the transfer hearing
in writing. He believed that Petitioner’s guardian was present in court that day. He
stated that Petitioner was facing life in prison whether the hearing was held or not. Trial
counsel did not bring Petitioner’s mental health issues before the juvenile court because
the juvenile court would have approved the transfer to criminal court anyway. Trial
counsel recalled another file memorandum that described Petitioner as “illiterate and
[having] the mind of a seven or eight year old child.”

        Trial counsel recalled advising Petitioner to plead guilty to the underlying felony
of attempted especially aggravated robbery. Trial counsel testified that he hired Dr.
Michael Buckner to help establish that Petitioner was unable to form the intent required
for the underlying felony. Trial counsel could not remember if an insanity defense was
litigated, although there was discussion about it with Dr. Buckner. Trial counsel believed
that after Petitioner pled guilty to the underlying felony, Rr. Buckner’s testimony became
irrelevant. Trial counsel agreed that Petitioner had severe mental health issues. Trial
counsel stated that he litigated a motion to suppress Petitioner’s statement, but was
unsuccessful.

      Trial counsel was also appellate counsel. Trial counsel agreed that it was his
responsibility to prepare the record for Petitioner’s appeal. He admitted that the
suppression hearing transcript was missing and that he did not draft any statement to
supplement the record. Trial counsel testified that it was his belief that Petitioner
understood the reasoning and consequences for pleading guilty to the underlying felony.

       On cross-examination, trial counsel recalled Petitioner’s fingerprint was found at
the scene and that the shell casing from the bullet was recovered. He recalled that the
bullet matched the gun that was found. Trial counsel stated that he received all
discovery, including Petitioner’s confession to the shooting. He recalled that the motion
to suppress Petitioner’s confession hearing was held and subsequently denied. Trial

       2
         By this point, the original trial judge, the Honorable Mary Beth Leibowitz, had retired
and the current post-conviction judge, the Honorable G. Scott Green, presided.
                                             -4-
counsel stated that he was uncomfortable with Dr. Buckner and was not confident that
Dr. Buckner could present something intelligible to the jury in terms of Petitioner’s
mental health. Dr. Buckner wrote a report on Petitioner’s mental health at the time of
trial, and it was entered in to evidence at the post-conviction hearing.

        Trial counsel testified that because Petitioner’s statement was entered into
evidence at trial, he had two reasons for Petitioner pleading guilty to the underlying
felony − credibility with the jury and consistency with Petitioner’s statement. Trial
counsel again stated that he believed that Petitioner understood why he was pleading
guilty to the underlying felony. Trial counsel stated that he was trying to get the jury to
recognize the discharge from the weapon was accidental, thereby absolving Petitioner.

        Trial counsel reiterated that the juvenile court, without question, would transfer
the case to criminal court, with or without a hearing. It was his belief that his best course
was to waive the transfer hearing to get the discovery. The transcript from the trial and a
transcript of Petitioner’s statement were entered into evidence at the post-conviction
hearing.

       The post-conviction court found that trial counsel’s strategy of advising Petitioner
to plead guilty to the underlying felony was “seriously flawed.” There was no intent
involved with felony murder, the “causal connection to the [especially aggravated
robbery]” exposed Petitioner to criminal liability for felony murder. The fact that
Petitioner admitted to the gun discharge and pled guilty to the underlying felony allowed
the post-conviction court to find that “conviction for felony murder was a foregone
conclusion.” The post-conviction court found that once the “[Petitioner’s] statement was
admitted in evidence in conjunction with the other evidence in this case, he had no viable
defense to the felony murder count.” The post-conviction court found that the “strategy
was not sound and is not entitled to deference, but this [c]ourt holds that Petitioner
suffered no prejudice.” The post-conviction court denied Petitioner relief and dismissed
the petition. It is from that dismissal that Petitioner now appeals.

                                                Analysis

       On appeal, Petitioner contends that his trial counsel was ineffective for waiving
the juvenile transfer hearing and that the post-conviction court erred by ruling that his
sentence was not in violation of the prohibitions against cruel and unusual punishment.3
See Miller v. Alabama, 567 U.S. 460 (2012).
        3
          Petitioner lists the following issues in his brief: (1) illegal transfer from juvenile court; (2)
ineffective assistance of counsel for advising Petitioner to plead guilty to the underlying felony; and (3)
ineffective assistance of counsel for inadequate appellate preparation in his brief. However, Petitioner
appears to have abandoned these arguments on appeal because he does not provide argument or citation to
                                                   -5-
        Post-conviction relief is available for any conviction or sentence that is “void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. In order to
prevail in a claim for post-conviction relief, a petitioner must prove his factual allegations
by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d
152, 156 (Tenn. 1999). “Evidence is clear and convincing when there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.”
Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). On appeal, a post-
conviction court’s findings of fact are conclusive unless the evidence preponderates
otherwise. Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006). Accordingly, questions
concerning witness credibility, the weight and value to be given to testimony, and the
factual issues raised by the evidence are to be resolved by the post-conviction court, and
an appellate court may not substitute its own inferences for those drawn by the post-
conviction court. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001). However,
the post-conviction court’s conclusions of law and application of the law to the facts are
reviewed under a purely de novo standard, with no presumption of correctness. Fields v.
State, 40 S.W.3d 450, 458 (Tenn. 2001).

                                I. Ineffective Assistance of Counsel

       Petitioner argues that the trial court erred by ruling that Petitioner was not
prejudiced by trial counsel’s ineffective assistance. The State argues that trial counsel
made an appropriate strategic decision to waive the juvenile transfer hearing.

        Both the Sixth Amendment to the Constitution of the United States and article I,
section 9 of the Tennessee Constitution guarantee the right of an accused to the effective
assistance of counsel. See Davidson v. State, 453 S.W.3d 386, 392-93 (Tenn. 2014). In
order to sustain a claim of ineffective assistance of counsel, a petitioner must demonstrate
that counsel’s representation fell below the range of competence demanded of attorneys
in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under the two
prong test established by Strickland v. Washington, 466 U.S. 668, 687 (1984), a petitioner
must prove that counsel’s performance was deficient and that the deficiency prejudiced
the defense. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting
that the same standard for determining ineffective assistance of counsel applied in federal
cases also applies in Tennessee). Because a petitioner must establish both elements in
order to prevail on a claim of ineffective assistance of counsel, “failure to prove either

authority to support them. “It is not the role of the courts, trial or appellate, to research or construct a
litigant’s case or arguments for him or her, and where a party fails to develop an argument in support of
his or her contention or merely constructs a skeletal argument, the issue is waived.” Sneed v. Bd. of Prof’l
Responsibility of Sup. Ct., 301 S.W.3d 603, 615 (Tenn. 2016).
                                                   -6-
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). “Indeed, a court need
not address the components in any particular order or even address both if the [petitioner]
makes an insufficient showing of one component.” Goad v. State, 938 S.W.2d 363, 370
(Tenn. 1996) (citing Strickland, 466 U.S. at 697).

       The test for deficient performance is whether counsel’s acts or omissions fell
below an objective standard of reasonableness under prevailing professional norms.
Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must evaluate the
questionable conduct from the attorney’s perspective at the time, Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and “should indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance,” State v. Burns,
6 S.W.3d 453, 462 (Tenn. 1999). This Court will not use hindsight to second-guess a
reasonable trial strategy, even if a different procedure or strategy might have produced a
different result. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994);
Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). However, this
deference to the tactical decisions of trial counsel is dependent upon a showing that the
decisions were made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528
(Tenn. Crim. App. 1992).

        Even if a petitioner shows that counsel’s representation was deficient, the
petitioner must also satisfy the prejudice prong of the Strickland test in order to obtain
relief. The question is “whether counsel’s deficient performance renders the result of the
trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S.
364, 372 (1993). A petitioner must show that there is a reasonable probability “sufficient
to undermine confidence in the outcome” that, “but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Burns, 6 S.W.3d at 463 (quoting
Strickland, 466 U.S. at 694). A juvenile has a constitutional right to the effective
assistance of counsel during a transfer hearing. Kent v.United States, 383 U.S. 541, 554
(1966); see Howell v.State, 185 S.W.3d 319, 326 (Tenn. 2006).

       Tennessee Code Annotated section 37-1-134 articulates the circumstances in
which a juvenile court “shall” transfer a juvenile accused of criminal offenses to criminal
court to be tried as an adult. Howell, 185 S.W.3d at 329. A juvenile who is more than
fourteen years of age at the time that the offense is committed shall be tried as an adult if
charged with certain enumerated offenses, including first-degree murder and especially
aggravated robbery. T.C.A. § 37-1-134(a)(1) (1998). The juvenile is entitled to a hearing
to determine whether transfer is appropriate, and the juvenile must have sufficient written
notice of the hearing. T.C.A. § 37-1-134(a)(2)-(3) (1998). At the hearing, the juvenile
court is required to find that there are reasonable grounds to believe that: “(A) The child
committed the delinquent act as alleged; (B) The child is not committable to an institution
                                            -7-
for the developmentally disabled or mentally ill; and (C) The interests of the community
require that the child be put under legal restraint or discipline.” T.C.A. § 37-1-
134(a)(4)(A)-(C) (1998).

        Petitioner’s argument is that trial counsel should have shown Petitioner to be
committable at the time of the transfer hearing. Trial counsel testified that he waived the
hearing to obtain open discovery and other advantages. Trial counsel testified that this
juvenile judge always approved motions to transfer, and it would have been fruitless to
hold the hearing. This Court will not “second-guess [juvenile] counsel’s informed
tactical and strategic decisions.” Pylant v.State, 263 S.W.3d 854, 874 (Tenn. 2008).
Strategic decisions of counsel are given deference when based upon adequate
preparation. Goad, 938 S.W.2d at 369. Further, a psychological exam performed by Dr.
Miller, indicates that Petitioner was not committable to a psychiatric facility and that he
could be transferred to “adult court.” Petitioner, despite entering the written report by Dr.
Buckner into evidence at the evidentiary hearing, fails to show clear and convincing
evidence that Petitioner was committable. The record does not contain evidence that
Petitioner would have been successful in preventing his case from being transferred if a
transfer hearing had been conducted.           Javonta Marquis Perkins v. State, No.
M201802223-CCA-R3-PC, 2020 WL 822089, at *4 (Tenn. Crim. App. Feb. 19, 2020).

       The Petitioner fails to demonstrate that trial counsel was deficient in waiving the
transfer hearing by clear and convincing. Petitioner is not entitled to relief on this claim.


                                     II. Sentence/Miller

       Defendant argues that his sentence of life imprisonment violates the prohibition
against cruel and unusual punishment in the United States and Tennessee Constitutions
because he was a juvenile at the time of the offense. See U.S. Const. amend VIII; Tenn.
Const. art. I, § 16. Defendant asserts that his sentence is in “strict violation of [Miller v.
Alabama, 567 U.S. 460 (2012)], [because] it specifically states that a mandatory
[sentence of] life imprisonment without parole for those under the age of [eighteen] at the
time of their crimes violates the 8th Amendment’s prohibition of cruel and unusual
punishment.” The State argues that his sentence is not illegal.

       In Tennessee, a defendant convicted of first degree murder is subject to three
potential sentences: (1) death; (2) life without the possibility of parole; or (3) life. T.C.A.
§ 39-13-202(c). “A defendant sentenced to life imprisonment in Tennessee may be
released after service of at least fifty-one years if the defendant earns the maximum
allowable sentence reduction credits.” Brown v. Jordan, 563 S.W.3d 196, 202 (Tenn.
2018). “When a defendant currently receives a life sentence in Tennessee, no parole is

                                             -8-
involved. He serves a specific number of years, and then he is released with no parole
supervision. His sentence is done.” Charles Everett Lowe-Kelley v. State, No. M2015-
00138-CCA-R3-PC, 2016 WL 742180, at *8 (Tenn. Crim. App. Feb. 24, 2016), perm.
app. denied (Tenn. June 23, 2016).

       In Miller, the United States Supreme Court held that a mandatory sentence of life
imprisonment without parole for juvenile offenders violates the Eighth Amendment’s
prohibition against cruel and unusual punishment. 567 U.S. at 479. This Court has
consistently rejected the claim that a juvenile’s mandatory life sentence, which requires
service of at least fifty-one years before release, constitutes an effective sentence of life
without parole in violation of Miller. See State v. Antonious Johnson and Rodney
Williams, No. W2018-01125-CCA-R3-CD, 2019 WL 4008113, at *15 (Tenn. Crim. App.
Aug. 23, 2019), no perm. app. filed; State v. Walter Collins, No. W2016-01819-CCA-R3-
CD, 2018 WL 1876333, at *19-21 (Tenn. Crim. App. Apr. 18, 2018), perm. app. denied
(Tenn. Aug. 8, 2018); Martez D. Matthews v. State, No. M2015-02422-CCA-R3-PC,
2016 WL 7395674, at *4 (Tenn. Crim. App. Dec. 21, 2016), perm. app. denied (Tenn.
Apr. 13, 2017); Charles Everett Lowe-Kelley, 2016 WL 742180, at *8; Billy L. Grooms v.
State, No. E2014-01228-CCA-R3-HC, 2015 WL 1396474, at *4 (Tenn. Crim. App. Mar.
25, 2015), perm. app. denied (Tenn. July 21, 2015), cert. denied, 136 S. Ct. 1216 (Feb.
29, 2016); State v. Kayln Marie Polochak, No. M2013-02712-CCA-R3-CD, 2015 WL
226566, at *34 (Tenn. Crim. App. Jan. 16, 2015), perm. app. denied (Tenn. May 14,
2015); Cyntoia Denise Brown v. State, No. M2013-00825-CCA-R3-PC, 2014 WL
5780718, at *21 (Tenn. Crim. App. Nov. 6, 2014), perm. app. denied (Tenn. May 15,
2015); Floyd Lee Perry, Jr. v. State, No. W2013-00901-CCA-R3-PC, 2014 WL 1377579,
at *5 (Tenn. Crim. App. Apr. 7, 2014), perm. app. denied (Tenn. Sept. 18, 2014).
Because Petitioner received a life sentence that has early release eligibility, his sentence
is not unconstitutional. Petitioner has not stated a colorable claim upon which relief can
be granted. Consequently, the post-conviction court did not err in dismissing the petition.
The judgment of the post-conviction court is affirmed.

                                        Conclusion

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



                                              ____________________________________
                                              TIMOTHY L. EASTER, JUDGE




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