        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs April 27, 2016

                KENNETH WATTS v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Knox County
                         No. 99716 Bob R. McGee, Judge


                 No. E2015-01151-CCA-R3-PC – Filed June 14, 2016


The petitioner, Kenneth Watts, appeals the denial of post-conviction relief from his 2009
Knox County Criminal Court jury convictions of vandalism and theft of property, for
which he received a sentence of 15 years. In this appeal, the petitioner contends only that
he was denied the effective assistance of counsel. Discerning no error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.

Gerald L. Gulley, Jr., Knoxville, Tennessee, for the appellant, Kenneth Watts.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Charme Allen, District Attorney General; and Eric Counts, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                       OPINION

              A Knox County Criminal Court jury convicted the petitioner of vandalism
of property valued at $10,000 or more but less than $60,000 and theft of property valued
at $1,000 or more but less than $10,000, and the trial court imposed a total effective
sentence of 15 years‟ incarceration. This court affirmed the convictions on direct appeal.
See State v. Kenneth Edward Watts, No. E2010-00553-CCA-R3-CD, slip op. at 1 (Tenn.
Crim. App., Knoxville, Nov. 8, 2011), perm. app. denied (Tenn. Mar. 7, 2012).

              In Kenneth Edward Watts, this court stated the facts of the case. The
evidence showed that the Reed family rented one-half of a duplex, identified as
Apartment 14, to the petitioner and his girlfriend, Wendy Ray, in October 2006; the other
half of the duplex, Apartment 13, was vacant. Id., slip op. at 2. Although the defendant
and Ms. Ray paid the October rent, the November rent payment was late, and no payment
was made in December or January. Kenneth “Ronnie” Reed personally delivered an
eviction notice, dated January 25, 2007, to Ms. Ray, and, at that time, Mr. Reed did not
notice any damage to the residence. Id. Although the petitioner and Ms. Ray had until
the end of February to vacate the premises, Mr. Reed inspected their apartment on
February 8. Id.

               He discovered that someone had detached both Apartment 14
               and Apartment 13‟s air conditioning units from the wall,
               removed all of the wiring in the entire house, removed copper
               plumbing, and removed most of the guttering. He said that
               there was “an enormous amount of trash inside and outside of
               the house,” including pieces of wire stripping, which had
               previously covered electrical wiring. Ronnie Reed testified
               that the [petitioner] and Ms. Ray were still living in the
               apartment, and they had run an electrical cord from a
               neighbor‟s house into their apartment. He said that they
               patched up a window that they had broken and covered the
               hole in the wall where the air conditioning unit had been with
               a towel. Ronnie Reed testified that he did not receive any
               complaints from the [petitioner] or Ms. Ray about not having
               any power. He said that the [petitioner] did not have
               permission to enter Apartment 13 nor did he have permission
               to take any of the items stolen from either apartment. Ronnie
               Reed testified that he had paid $8,000 to replace the wiring in
               the unit and estimated that there was $3,500 to $4,000 worth
               of work yet to be done on the plumbing. He paid $800 to
               replace the gutters. He spent another $1,600 on replacing the
               air conditioning units and $3,200 to have Apartment 14
               cleaned, painted, and retiled. Ronnie Reed testified that the
               rental company did not have insurance to cover the damage to
               the duplex. He also testified that during the period of time
               that the duplex was damaged, “copper was at its highest
               rating for recycling.”

Id., slip op. at 2-3.

                Edwin Doolin, who was employed by a scrap metal recycling business,
testified that the petitioner, who had sold copper at his store several times, sold copper to
him during January and February of 2007. Id., slip op. at 3. Mr. Doolin had photocopied
the petitioner‟s driver‟s license at the time of the sales. Id. On cross-examination, Mr.
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Doolin acknowledged that he had sent an electronic mail “to a police detective stating
that the [petitioner] had accompanied someone else to the store but remained outside
while the other person sold approximately eight pounds of copper,” but he clarified that
the electronic mail was in reference to a single occasion. Id.

              Knox County Sheriff‟s Department Detective T. Michael Chieves testified
that he had “made contact with” the petitioner at his apartment on January 19, 2007, and
had observed that the petitioner‟s “apartment „looked like a pack rat lived there,‟ but he
did not „see any physical damage‟ at that time.” Id. Following the issuance of vandalism
and theft warrants, Detective Chieves photographed the subject properties and noticed “a
burnt area in the backyard.” Id. Detective Chieves “agreed that „a common way to get
the insulation off of the copper wire‟ was by burning it off.” Id. On cross-examination,
Detective Chieves admitted that he could not connect the copper wiring in the duplex to
the copper sold to Mr. Doolin‟s business. Id.

               Mary Myers testified for the defense that she lived on the same street as the
duplex and could see the duplex from her residence. Id., slip op. at 4. She stated that she
“never saw the [petitioner] taking anything from the duplex, but she did see an individual
known to her as Lee Presley taking items from the duplex.” Id. On cross-examination,
Ms. Myers conceded that Ms. Ray was her daughter but denied that Ronnie Reed had
rented the apartment to Ms. Ray and the petitioner, claiming that Ronnie Reed‟s father,
Walter Reed, was the only person “that ever gave them a receipt.” Id. Ms. Myers also
testified that she had purchased the air conditioning unit for Ms. Ray‟s and the
petitioner‟s apartment. Id.

              On rebuttal, Ronnie Reed reiterated that he had rented the apartment to Ms.
Ray in October 2006 and testified that he had been forced to evict Ms. Myers from her
residence as well. Id.

              On May 30, 2012, the petitioner filed, pro se, a timely petition for post-
conviction relief, alleging, inter alia, that he was deprived of the effective assistance of
counsel. Following the appointment of counsel and the amendment of the petition, the
post-conviction court conducted an evidentiary hearing on February 28, 2014.

              At the evidentiary hearing, the petitioner testified that, between the
conclusion of trial and the sentencing hearing, trial counsel informed him that he would
be sentenced as a Range II offender because he had two prior felonies. At the sentencing
hearing, the petitioner saw, for the first time, the presentence report that listed seven prior
felony convictions, which “threw [the petitioner] for a loop.” The petitioner asked trial
counsel “what‟s going on,” and trial counsel “shrugged his shoulders and just plowed on
through the sentencing hearing,” rather than seek a continuance on the basis of the new
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information. The petitioner testified that trial counsel was “in shock almost” after seeing
the report. The petitioner recalled trial counsel‟s discussing the “twenty-four hour rule”
during the sentencing hearing. The trial court ultimately sentenced the petitioner as a
career offender. Following sentencing, the petitioner attempted to file his own motions
because he “just wanted to get [trial counsel] off [his] case,” but the trial court refused to
consider the petitioner‟s motions. In a separate vandalism-and-attempted theft case, the
petitioner was sentenced as a persistent offender.

              The petitioner also addressed trial counsel‟s alleged ineffectiveness for
failure to challenge the variance between the allegations in the indictment and the proof
adduced at trial:

              [T]he indictment alleged five separate counts. It was two
              counts of felony theft, two counts of felony vandalism, and
              one count of aggravated burglary, and the warrant that
              initiated it, the only sworn statement from the case was
              warrant 777079, which alleged Apartments 9, 10, G, and H,
              and the indictment had a joinder offense for aggravated
              burglary against Apartment 13. When we got to trial, the
              only evidence that was presented concerned Apartments 14
              and 13, respectfully, so.

At trial, trial counsel addressed the variance issue by arguing “that it was outside the
parameters of the indictment,” but because trial counsel failed to raise the issue in his
motion for new trial, appellate review was precluded.

               With respect to the State‟s notice of enhancement, the petitioner stated that
he believed it to be deficient because it failed to list the nature of the felony convictions.
The petitioner testified that trial counsel was ineffective by failing to raise the deficiency
in either the motion for new trial or on appeal.

               Trial counsel testified that he had filed a timely motion for new trial
following the petitioner‟s conviction in the underlying case. Trial counsel agreed that the
judgment was entered on January 15, 2010, and that in the section entitled “special
conditions,” it stated, “Motion for a new trial to be heard February 12th, 2010.”

              Trial counsel stated that he had met with the petitioner several times
throughout his representation and that “from the get-go we had talked about his prior
convictions and his assertion that [he] only had two.” Trial counsel recalled that he
“could not get through to him that [he did] not have just two convictions” and that the
petitioner “refused to understand that just because you pled on one date or pled on two
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dates, does not mean you only have one or two felonies.” Trial counsel continued, stating
as follows:

              I told him about this twenty-four hours, that that may be an
              argument that we have but I‟ve got nothing that‟s going to
              show the judge that these are all within twenty-four hours.
              First off we‟ve got a March 11th, ‟91 date, two on March
              25th, ‟91, two on – or one on March 28th, one on March 29th,
              one May 29th, another March 17th, and this is – I mean,
              that‟s seven and if you combine a couple from the same date
              it comes down to five. I mean, I had somewhat of an
              argument and his recollection of our discussions seems to be
              much different than mine. But we had talked about this and
              he knew full well about these and that that was a problem.

Trial counsel denied telling the petitioner that he was a Range II offender. He testified
that the petitioner‟s plea offer “may have been a Range II” but that the petitioner had
rejected the offer. At the sentencing hearing, trial counsel did argue that the trial court
should examine the petitioner‟s criminal history through the lens of the 24-hour rule to
count as few felony convictions as possible.

                 With respect to the underlying warrants, trial counsel could not recall
whether the State had provided those to him. When asked whether the warrant at issue in
the underlying case failed to mention Apartment 14, trial counsel responded, “I guess not,
if it‟s not in the warrant.”

              Trial counsel reiterated that he had informed the petitioner that he could be
sentenced as a persistent or career offender based on his criminal history. Trial counsel
insisted that the petitioner “knew darn well” that he had been convicted of the prior
felonies.

               With this evidence, the post-conviction court denied relief, finding, in
pertinent part, as follows:

                     Variance: The third count of the five count indictment
              alleged damage to Apartment 13. The remaining counts
              alleged other damage to the premises without further
              specificity. At trial evidence was presented of damage to
              Apartment 13 as well as of evidence of damage to another
              apartment and other damage that was not limited to a single
              apartment. There was no variance between the indictment
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              and the proof and no ineffective assistance of counsel for
              failing to establish one.

                      Sentencing: [The p]etitioner testified that trial counsel
              told him he would be sentenced as a Range Two offender. He
              said that trial counsel never warned him that he could be
              sentenced as a Career Criminal. Trial counsel testified that he
              had multiple conversations about [the] petitioner‟s exposure
              in the case and that petitioner definitely knew he could be
              sentenced as a Career Criminal. [The p]etitioner said that at
              the sentencing hearing trial counsel argued that some of his
              convictions should be merged in compliance with the 24 hour
              rule. This issue was raised on direct appeal. The Court of
              Criminal Appeals held that it was the defendant‟s burden to
              establish whether any convictions were for crimes that were
              committed within 24 hours of each other, that he failed to do
              so, and was properly sentenced as a Career Criminal. [The
              p]etitioner testified on cross examination that he was unable
              to remember committing the other felonies because he was
              nineteen at the time. He testified on re-direct that he was able
              to remember that he committed aggravated burglary on 03-
              28-91 at 5:00 p.m. and that he attempted to sell cocaine the
              next day at 8:00 a.m. This court holds that the petitioner has
              failed to establish by clear and convincing evidence that trial
              counsel was ineffective either in communicating sentencing
              exposure to petitioner or in failing to establish that any
              convictions were subject to merger under the 24 hour rule. . . .

              In this appeal, the petitioner reiterates his claim of ineffective assistance of
counsel, claiming that trial counsel performed deficiently by failing to raise the issue of a
material variance in the motion for new trial, by failing to advise the petitioner of the
proper sentencing range or challenge his offender classification, and by failing to object
to the State‟s deficient notice of enhancement. The State contends that the post-
conviction court did not err by denying relief.

              We view the petitioner‟s claim with a few well-settled principles in mind.
Post-conviction relief is available only “when the conviction or sentence 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. A post-
conviction petitioner bears the burden of proving his or her factual allegations by clear
and convincing evidence. Id. § 40-30-110(f). On appeal, the appellate court accords to
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the post-conviction court‟s findings of fact the weight of a jury verdict, and these findings
are conclusive on appeal unless the evidence preponderates against them. Henley v.
State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn.
Crim. App. 1997). By contrast, the post-conviction court‟s conclusions of law receive no
deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453
(Tenn. 2001).

               Before a petitioner will be granted post-conviction relief based upon a
claim of ineffective assistance of counsel, the record must affirmatively establish, via
facts clearly and convincingly established by the petitioner, that “the advice given, or the
services rendered by the attorney, are [not] within the range of competence demanded of
attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and
that counsel‟s deficient performance “actually had an adverse effect on the defense,”
Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, 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. Should the petitioner fail to establish either deficient performance or prejudice, he is
not entitled to relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).
Indeed, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697.

               When considering a claim of ineffective assistance of counsel, a reviewing
court “begins with the strong presumption that counsel provided adequate assistance and
used reasonable professional judgment to make all significant decisions,” Kendrick v.
State, 454 S.W.3d 450, 458 (Tenn. 2015) (citing Strickland, 466 U.S. at 689), and “[t]he
petitioner bears the burden of overcoming this presumption,” id. (citations omitted). We
will not grant the petitioner the benefit of hindsight, second-guess a reasonably based trial
strategy, or provide relief on the basis of a sound, but unsuccessful, tactical decision
made during the course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn.
Crim. App. 1994). Such deference to the tactical decisions of counsel, however, applies
only if the choices are made after adequate preparation for the case. Cooper v. State, 847
S.W.2d 521, 528 (Tenn. Crim. App. 1992).

              A claim of ineffective assistance of counsel is a mixed question of law and
fact. Kendrick, 454 S.W.3d at 457; Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010);
State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453,
461 (Tenn. 1999). When reviewing the application of law to the post-conviction court‟s
factual findings, our review is de novo, and the post-conviction court‟s conclusions of
law are given no presumption of correctness. Kendrick, 454 S.W.3d at 457; Fields, 40
S.W.3d at 457-58; see also State v. England, 19 S.W.3d 762, 766 (Tenn. 2000).
                                            -7-
               In our view, the record fully supports the ruling of the post-conviction
court. With respect to the issue of material variance, the five-count indictment charged
the petitioner with theft of the Reeds‟ property valued at $10,000 or more but less than
$60,000, which included heating and air-conditioning units, electrical wire, copper tubing
and other items and which occurred between January 1 and January 18, 2007; vandalism
of the Reeds‟ property valued at $10,000 or more but less than $60,000 between January
1 and January 18, 2007; aggravated burglary of Apartment 13 occurring between January
25 and February 9, 2007; theft of the Reeds‟ property valued at $1,000 or more but less
than $10,000, which included electrical wiring, copper tubing, air-conditioning units,
doors, gutters, and other items and which occurred between January 25 and February 9,
2007; and vandalism of the Reeds‟ property valued at $10,000 or more but less than
$60,000 occurring between January 25 and February 9, 2007. The petitioner argues that
the arrest warrants in the underlying case referred to certain apartments but that, at trial,
the State introduced evidence of vandalism and theft at other apartments. This argument
avails the petitioner nothing because the arrest warrants were superseded by the
indictments. See Jones v. State, 332 S.W.2d 662, 667 (Tenn. 1960). Moreover, a
variance will not qualify as fatal “if the indictment sufficiently informs the defendant of
the charges against him so that he may prepare his defense and not be misled or surprised
at trial” and “if the variance is not such that it will present a danger that the defendant
may be prosecuted a second time for the same offense.” State v. Moss, 662 S.W.2d 590,
592 (Tenn. 1984); see also State v. Mayes, 854 S.W.2d 638, 640 (Tenn. 1993). In the
instant case, the petitioner failed to show that he was not sufficiently informed of the
charges against him or that he was prejudiced by the alleged variance, and, as such, no
fatal variance existed.

              With respect to the petitioner‟s claim that trial counsel failed to inform him
of the sentencing range he faced at trial, the evidence does not preponderate against the
post-conviction court‟s implicit finding that trial counsel informed the petitioner, on more
than one occasion, of his sentencing range and offender classification.

              Finally, the petitioner‟s claim that trial counsel should have objected to the
State‟s defective notice of enhancement must fail because of the petitioner‟s failure to
introduce into evidence a copy of said notice of enhancement. As such, we hold the
petitioner has failed to prove by clear and convincing evidence that trial counsel‟s
representation was deficient or prejudicial.

               The petitioner failed to establish that he was denied the effective assistance
of counsel at trial. Accordingly, the judgment of the post-conviction court is affirmed.



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      _________________________________
      JAMES CURWOOD WITT, JR., JUDGE




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