                                                                                       10/30/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                       Assigned on Briefs September 19, 2018

         DALE SAMUEL WAGGONER v. STATE OF TENNESSEE

               Appeal from the Criminal Court for Davidson County
                 No. 2011-B-1104 Cheryl A. Blackburn, Judge
                    ___________________________________

                          No. M2017-02251-CCA-R3-PC
                      ___________________________________


The petitioner, Dale Samuel Waggoner, appeals the denial of his post-conviction petition,
arguing the post-conviction court erred in finding he received effective assistance of
counsel at trial. Following our review, we affirm the denial of the petition.

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

J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS,
P.J. and TIMOTHY L. EASTER, J., joined.

Kara L. Everett, Carthage, Tennessee, for the appellant, Dale Samuel Waggoner.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Glenn R. Funk, District Attorney General; and Megan King, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                             Facts and Procedural History

       After robbing a Mapco Gas Station on January 20, 2011, the petitioner was
convicted of aggravated robbery and entered a best interest plea to possession of a
handgun by a convicted felon. The trial court imposed an effective eighteen-year
sentence, and the petitioner challenged the sufficiency of the evidence supporting his
convictions on direct appeal. This Court summarized the underlying facts leading to the
petitioner’s convictions as follows:
        John Dellar testified that he was working the 10:00 p.m. to 6:00 a.m.
shift on January 20, 2011, at the Mapco when he noticed a dark-colored,
four-door SUV outside the front door at about 1:30 a.m. A man got out of
the passenger side, walked around the vehicle, and talked to the driver for
about a minute before coming inside the store. Dellar described the man as
African-American, about six feet tall, and wearing black pants, black shirt,
a black or dark blue hooded coat with fur around the hood, and a baseball
cap. The man then walked up to the cash register and told Dellar, “[G]ive
me all the mother-f* * * * * * money.” The man pulled up his black shirt,
revealing a white T-shirt underneath, and retrieved a black automatic pistol
with red sights from the front of his pants, which he pointed at Dellar.
Dellar took the cash drawer out of the register and placed it on the counter.
The man removed the money from the drawer, about $41 and some change,
as well as a $2 bill stamped with the Mapco store number, and put it in his
pants pocket. The man also took a carton of Newport cigarettes. The man
then left and ran south through the parking lot. Dellar locked the door and
called 9-1-1. He gave a description of the robber and the suspect vehicle to
the 9-1-1 dispatcher, and the police arrived about ten minutes later. Dellar
identified the $2 bill bearing the Mapco’s store number, which was
admitted as an exhibit. A copy of the store’s surveillance video was played
for the jury.

       Dellar acknowledged that, at a preliminary hearing, he identified co-
defendant Deonte Davis as the robber. Dellar explained that Davis had
been in the store a few days before the robbery and had a confrontation
with the manager. As a result, Davis’ picture had been hung up in the
manager’s office after the robbery to inform the employees that Davis was
not allowed in the store. Dellar believed that he identified Davis as the
robber because “his face was very familiar looking at it every night.”

        Sergeant Josh Blaisdell of the Metropolitan Nashville Police
Department (“MNPD”) testified that he was about one mile from the
Mapco when he was dispatched to a robbery in progress at 1:34 a.m. About
thirty seconds to a minute later, he noticed a vehicle matching the
description of the suspect SUV parked in the vacant lot of a nearby strip
mall. When the SUV pulled onto Old Hickory Boulevard, Sergeant
Blaisdell followed in his unmarked police vehicle and attempted to make a
traffic stop by activating his blue lights. The SUV accelerated, and
Sergeant Blaisdell activated his siren. When the SUV did not stop,
Sergeant Blaisdell pursued it at speeds of sixty to seventy miles per hour
down Old Hickory Boulevard for about a mile. After the vehicle crossed
                                    -2-
the intersection of Bell Road, which came to a dead end, it “went off into
the woods and hit a tree.” The driver, whom Sergeant Blaisdell later
learned was Tiwon Harvell, jumped out and fled into the woods. Sergeant
Blaisdell approached the vehicle and found the [petitioner], who was
wearing a black shirt, in the front passenger seat and another individual,
later identified as Deonte Davis, in the backseat. The [petitioner] and Davis
were taken into custody. Sergeant Blaisdell saw a baseball cap and a
handgun on the front passenger floorboard, a carton of Newport cigarettes
near the center console, and some cash underneath the driver’s seat. About
five minutes later, Harvell was apprehended and taken into custody.

        MNPD Officer Greg Blackburn testified that he, in his marked
police vehicle with emergency equipment activated, joined in Sergeant
Blaisdell’s pursuit of the suspect vehicle down Old Hickory Boulevard.
After the suspect vehicle crashed into a tree, the driver jumped out and ran
through the wood line. As Officer Blackburn and Sergeant Blaisdell
approached the vehicle, they discovered the [petitioner] in the front
passenger seat and Deonte Davis in the middle row seat of the SUV. The
[petitioner] and Davis were taken into custody, and Officer Blackburn
noticed a black handgun on the floorboard of the front passenger seat in
plain view. Officer Blackburn bagged and labeled the coins, including
thirty-nine quarters, sixty-nine dimes, and eleven nickels, recovered from
the [petitioner’s] person. Officer Blackburn said that a $2 bill was also
recovered from the scene. Officer Blackburn said that he noted in his
offense report that the [petitioner] was wearing a black, hooded jacket,
black pants, and a black shirt.

        MNPD Officer Michael McCord testified that he responded to the
scene of the crash and took the [petitioner], who was in the passenger’s
seat, into custody. Officer McCord patted down the [petitioner] to check
for weapons and noticed that he had “pockets full of coin change.”

       Detective Eric Harrison of the MNPD testified that when he arrived
at the scene of the crash, the [petitioner] and Davis were in custody and
Harvell was missing. As he approached the suspect vehicle, he noticed a
handgun with red sights on the floorboard of the passenger side. He also
saw an opened carton of Newport cigarettes and unopened packs of
cigarettes scattered throughout the vehicle.

       Officer Daniel Turner of the MNPD testified that when he arrived at
the scene where the suspect vehicle had crashed, Sergeant Blaisdell advised
                                    -3-
him that the driver had fled the area and gave him a description of the flight
direction. Officer Turner then drove up Bell Road and subsequently
apprehended Harvell, who was wearing a black sweatshirt and black pants,
as he “came running out . . . of the woods.”

        Rhonda Evans, a crime scene technician with the MNPD, testified
that she responded to the scene of the crashed suspect vehicle and made
photographs and collected items of evidence. Inside the vehicle, she saw a
handgun on the front passenger floorboard, an opened carton of Newport
cigarettes, and two opened packs of Newport cigarettes. She identified a
photograph of the money recovered from the vehicle: a $20 bill, three $5
bills, and six $1 bills, totaling $41. She also identified photographs of the
Hi-Point handgun found in the vehicle, as well as the magazine, the rounds
removed from the magazine, and a round removed from the chamber. She
lifted fingerprints off the carton of Newport cigarettes, the two unopened
packs, one opened pack, and the magazine. She was unable to lift any
prints off the gun but noticed it had red sights. She explained that it was
not unusual to not find any prints on the weapon because the robbery
occurred in January when it was “pretty cold.” She also identified
photographs she made of the [petitioner’s] clothing, which included dark-
colored pants, a dark-colored, hooded jacket, a white tank top, a black shirt,
and black shoes.

       On cross-examination, Evans acknowledged that she did not see any
fur on the hood of the [petitioner’s] jacket. She agreed that Davis’ jacket
had a zipper all the way around the hood but no fur.

       Andreana Breveard, a property supervisor with the Davidson County
Sheriff’s Office, testified that she collected the [petitioner’s] clothing when
he was booked at the sheriff’s office on January 20, 2011. His clothing
included a black, hooded jacket, black pants, gray tank top, black shirt, and
black shoes.

        Lorita Marsh, a police identification supervisor with the MNPD,
testified that she had been a latent print examiner since 1995. She said that
some of the latent fingerprints submitted to her in the case were of no value
for comparison, but she was able to determine that a palm print lifted from
the carton of Newport cigarettes and a thumbprint lifted from one of the
opened packs of Newport cigarettes found in the suspect vehicle matched
the [petitioner’s] prints. On cross-examination, Marsh agreed that someone

                                     -4-
        else could have handled the carton of cigarettes and “not gotten a print
        picked up.”

               The [petitioner] elected not to testify and rested his case without
        presenting any proof.

State v. Dale Samuel Waggoner, No. M2013-00731-CCA-R3-CD, 2014 WL 1354938, at
*1-3 (Tenn. Crim. App. Apr. 4, 2014), perm. app. denied (Tenn. Sept. 2, 2014). After its
review, this Court upheld the petitioner’s convictions.

       The petitioner then filed a pro se petition for post-conviction relief, alleging trial
counsel was ineffective in handling the petitioner’s case both prior to and during trial.
After the appointment of counsel, the petitioner filed an amended petition for post-
conviction relief wherein he further specified his allegations against trial counsel. The
petitioner alleged trial counsel failed to adequately prepare for trial in that he did not
familiarize himself with the applicable laws and he failed to “properly investigate
relevant issues in [the] case.” The petitioner further asserted trial counsel “failed to
properly interview” him, failed to counsel and advise him of the elements of the charged
offenses, failed to learn the petitioner’s “state of mind during the commission of the
crime,” failed to advise him of his right to testify or not testify, and “failed to properly
explain [the] process of trial, review discovery, or explain the penalties of the convicted
crimes.”

       At the post-conviction hearing, trial counsel stated the petitioner’s family hired
him approximately five months prior to trial.1 Over those five months, trial counsel met
with the petitioner during his court appearances on June 14, 2012, October 5, 2012, and
November 2, 2012. He met with the petitioner an additional three times, including a
“meet and greet” followed by two “fairly lengthy discussions.” During the meetings, trial
counsel explained trial procedure, detailed the elements of the charged offenses and the
State’s burden of proof regarding the same, provided his opinion on the strength of the
State’s case, and reviewed discovery with the petitioner.

       After reviewing the discovery, trial counsel developed a defense theory which
rested on misidentification. Trial counsel explained, “[i]n a robbery case when the
person who is being robbed who is three feet away from the person who is trying to rob
them can’t identify them properly or accurately in a lineup, I found that [to be] a glaring
hole.” Regarding specific evidence at issue in the trial, trial counsel explained he did not

        1
         Prior to hiring trial counsel, the petitioner was represented in general sessions by different
counsel who was also appointed to the petitioner’s case on direct appeal. The petitioner makes no claims
of ineffective assistance against his general sessions/appellate counsel.
                                                 -5-
know prior to trial that the $2 bill found on the petitioner after his arrest was stamped
with the Mapco store number. As such, he did not discuss this fact with the petitioner
prior to trial. However, trial counsel noted he and the petitioner did discuss how the State
would utilize certain identifying pieces of evidence against him, including the clothing
worn by the petitioner during the crimes, the $2 bill found on the petitioner after his
arrest, and the gun, which was owned by the petitioner and “was all over the video.”
Additionally, because video evidence of the crime existed and it was “fairly straight
forward,” trial counsel did not utilize a private investigator in preparing for trial.

       Prior to trial, however, trial counsel discussed settlement offers with the petitioner
“on a couple of occasions because [trial counsel] thought it was a huge risk for him . . .
with his history” to go to trial. Specifically, trial counsel recalled a fifteen-year offer, not
an eight-year offer, but acknowledged “it may have been that low.” Trial counsel also
did not remember a twelve-year offer at eighty-five percent but stated, [i]f that’s what it
was, I’m sure that’s what I presented to [the petitioner].”

       Trial counsel acknowledged the State filed a notice of enhanced punishment and
impeachment evidence identifying several of the petitioner’s prior convictions. Based
upon two prior felony convictions, trial counsel believed the petitioner was a Range I
offender prior to trial. However, upon being convicted of the two present felonies, trial
counsel thought the petitioner’s offender status shifted to Range II. As such, upon
conviction, trial counsel stated the petitioner was exposed to an additional twelve years in
sentencing as a Range II offender. Based upon the petitioner’s criminal history, trial
counsel advised him against testifying at trial. Trial counsel acknowledged the petitioner
did testify at his sentencing hearing.

       The petitioner then testified, stating he met with trial counsel in jail “maybe once
or twice.” The petitioner indicated trial counsel failed to explain the trial process “how
[the petitioner] believe[d] he should have,” noting trial counsel failed to discuss the
evidence against him or the elements the State was required to prove at trial. When asked
if he and trial counsel reviewed discovery or discussed the strength of the State’s case
against him, the petitioner claimed, “[n]ot so much.” The petitioner stated trial counsel
did not discuss lesser-included offenses with him or the punishments they carried.
Furthermore, the petitioner indicated trial counsel failed to explain the misidentification
theory to him but admitted trial counsel mentioned the victim “identif[ied] someone
else.”

       The petitioner remembered trial counsel conveying a settlement offer of “an eight
at eighty-five percent,” but could not recall if trial counsel believed it was a good offer.
The petitioner stated trial counsel “wasn’t sure” if he would be classified as a Range I or
Range II offender. As such, trial counsel only discussed the sentencing range applicable
                                             -6-
to a Range I offender with him prior to trial. The petitioner stated he would have
considered the applicable sentencing range he faced as a Range II offender in deciding
whether to accept a plea deal had he been advised of the same by trial counsel.

       The petitioner acknowledged trial counsel advised him of his testimonial rights
and stated trial counsel “said it wasn’t in [his] best interest” to testify at trial. The
petitioner could not recall why he testified at his sentencing hearing, but stated trial
counsel failed to advise him of the effect his testimony would have on his case moving
forward. The petitioner stated if he had known of the effect his testimony might have on
his case, he would not have testified at the sentencing hearing.

       During cross-examination, the petitioner acknowledged he hired trial counsel on
June 14, 2012, approximately five months prior to trial. The petitioner stated trial
counsel met with him in jail, but they did “[n]ot really” discuss his case. The petitioner
again stated trial counsel told him not to testify. However, he did not remember the trial
court advising it would allow five prior convictions into evidence if he chose to testify.
Additionally, the petitioner did not remember the Momon colloquy led by the trial court
or signing a waiver regarding the same.

       After its review of the evidence presented, the post-conviction court denied relief
and this timely appeal followed.

                                         Analysis

        On appeal, the petitioner asserts the outcome of his trial and best interest plea
would have been different absent the deficiencies of trial counsel. Specifically, the
petitioner argues trial counsel failed to adequately communicate with him or to prepare
for trial, failed to explain the “trial process and penalties for the crimes charged,” and
failed to properly advise him of his right to testify at trial. The State contends the post-
conviction court correctly denied the petition as the petitioner failed to prove his factual
claims by clear and convincing evidence. Following our review of the record and
submissions of the parties, we affirm the judgment of the post-conviction court.

       The petitioner bears the burden of proving his post-conviction factual allegations
by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f). The findings of fact
established at a post-conviction evidentiary hearing are conclusive on appeal unless the
evidence preponderates against them. Tidwell v. State, 922 S.W.2d 497, 500 (Tenn.
1996). This Court will not reweigh or reevaluate evidence of purely factual issues.
Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, appellate review of a trial
court’s application of the law to the facts is de novo, with no presumption of correctness.
See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of
                                           -7-
counsel presents mixed questions of fact and law. Fields v. State, 40 S.W.3d 450, 458
(Tenn. 2001). Thus, this Court reviews the petitioner’s post-conviction allegations de
novo, affording a presumption of correctness only to the post-conviction court’s findings
of fact. Id.; Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

       To establish a claim of ineffective assistance of counsel, the petitioner must show
both that counsel’s performance was deficient and that counsel’s deficient performance
prejudiced the outcome of the proceedings. Strickland v. Washington, 466 U.S. 668, 687
(1984); State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that the
standard for determining ineffective assistance of counsel applied in federal cases is also
applied in Tennessee). The Strickland standard is a two-prong test:

              First, the defendant must show that counsel’s performance was
       deficient. This requires showing that counsel made errors so serious that
       counsel was not functioning as the “counsel” guaranteed the defendant by
       the Sixth Amendment. Second, the defendant must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the defendant of a fair trial, a trial
       whose result is reliable.

466 U.S. at 687. In order for a post-conviction petitioner to succeed, both prongs of the
Strickland test must be satisfied. Id. Thus, courts are not required to even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” Id.;
see also Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (stating that “a failure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).

       A petitioner proves a deficiency by showing “counsel’s acts or omissions were so
serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688;
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong of the
Strickland test is satisfied when the petitioner shows there is a reasonable probability, or
“a probability sufficient to undermine confidence in the outcome,” that “but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. However, “[b]ecause of the difficulties inherent in making
the evaluation, a court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91,
101 (1955)).

                                           -8-
        Here, the petitioner alleges trial counsel was ineffective by failing to meaningfully
communicate with him or to prepare his case for trial. Within this context, the petitioner
asserts several specific failures, including that trial counsel failed to explain the trial
process to him and failed “to discuss with him the penalties for the offenses in which he
was charged.” The petitioner contends trial counsel’s misunderstanding as to the
petitioner’s offender status “crippled the plea negotiations and did not give [the
petitioner] a realistic outcome as he weighed his options between an eight-year offer to
serve at eighty-five percent or whether he should risk going to trial.” The petitioner also
claims trial counsel “crippled” his defense “by relying solely on the ‘misidentification’
theory.” Separately, the petitioner claims trial counsel failed to advise him of his right to
testify or not testify at trial, arguing his testimony “would have assisted his defense and
led the jury to a different result.” The record, however, fails to support any of the
petitioner’s claims.

        In denying relief, the post-conviction court first addressed the petitioner’s
allegation that trial counsel failed to effectively communicate with him or to prepare his
case for trial. The post-conviction court stated,
“[n]o evidence has been presented to this [c]ourt to substantiate [the] [p]etitioner’s
allegation that [t]rial [c]ounsel failed to be aware of the law applicable to [the]
[p]etitioner’s trial” and “[n]othing in the record indicates that [t]rial [c]ounsel failed to
meet with the petitioner and keep him informed of the proceedings.” We agree. The
record shows trial counsel met with the petitioner at least six times in the five months
preceding trial. Trial counsel noted two of the meetings were particularly long during
which they discussed discovery, the elements of the charged offenses, the State’s burden
of proof, trial procedures, trial strategies, the petitioner’s testimonial rights and trial
counsel’s opinion regarding the same, the strength of the State’s case, and the plea deals
offered by the State. The post-conviction court accredited trial counsel’s testimony and
nothing in the record preponderates against its factual findings. See Tidwell, 922 S.W.2d
at 500.

       Furthermore, at the post-conviction hearing, the petitioner admitted he and trial
counsel discussed many of the above topics and further offered only vague descriptions
of his meetings with trial counsel in support of his claims. The petitioner also failed to
provide any facts demonstrating how trial counsel “crippled” his case by relying on
misidentification as a defense at trial. As such, the petitioner has failed to provide
evidence detailing trial counsel’s alleged failure to communicate with him or to
adequately prepare his case for trial. The petitioner is not entitled to relief.

       Regarding the petitioner’s sentencing exposure at trial, both trial counsel and the
petitioner explained trial counsel “wasn’t sure” if the petitioner was a Range I or Range II
offender. The post-conviction court addressed this issue, as follows:
                                            -9-
                Trial [c]ounsel admitted at the post-conviction hearing that he was
       not sure whether the [p]etitioner met Range I or Range II classification
       prior to trial, and that he advised the [p]etitioner [of] the same. The
       [p]etitioner corroborated that his [t]rial [c]ounsel advised he was not certain
       about the classification range. Both parties, however, testified that prior to
       trial the State offered a sentence of 8 years to serve at the Tennessee
       Department of Correction with 85% release eligibility. [The] [p]etitioner
       rejected that offer and pursued a trial. Although [t]rial [c]ounsel
       misadvised the [p]etitioner that he may be considered as a Range I offender,
       this [c]ourt takes judicial notice that the State’s 8-year offer was at the
       lower end of the Range I sentencing range (8-12 years) and that it is not
       disputed that [the] [p]etitioner was advised he may be sentenced within the
       Range [II] category should he be convicted at trial. While [t]rial [c]ounsel
       misadvised the [p]etitioner that his convictions from his instant trial would
       count towards his history and bump him to Range II, the [c]ourt credits
       [t]rial [c]ounsel’s testimony that [the] [p]etitioner was made aware that if he
       proceeded to trial he would be sentenced as a Range II Offender (12-20
       years). Here, the [p]etitioner was sentenced in the middle of the range with
       18 years. Accordingly, the [c]ourt finds that this error does not qualify
       [the] [p]etitioner to a new trial.

        In reviewing the record before us, we again agree with the post-conviction court.
Though the petitioner asserts trial counsel only advised him of the sentencing range
applicable to a Range I offender, the petitioner has failed to provide clear and convincing
evidence to support his factual contention. Rather, the record indicates trial counsel
informed the petitioner of the potential punishment associated with a Range II offender
status after which the petitioner chose to proceed to trial. Specifically, after having been
informed by trial counsel that he faced a potential sentencing range of twelve to twenty
years as a Range II offender, the petitioner rejected the initial settlement offer of eight
years, a minimum Range I sentence. Tenn. Code Ann. §§ 40-35-112(a)(2), -112(b)(2).
The record further indicates the petitioner rejected all of the plea deals conveyed by trial
counsel prior to trial, including the eight-year offer, despite trial counsel’s advice
regarding the risks of trial in light of the petitioner’s criminal history and the potential
Range II punishment he faced. Accordingly, the petitioner cannot prove prejudice
resulting from this claim. Strickland, 466 U.S. at 694. The petitioner is not entitled to
relief.

       Finally, the post-conviction court also reviewed the petitioner’s claim alleging trial
counsel failed to advise him of his testimonial rights at trial. In denying relief as to this
claim, the post-conviction court found the petitioner signed a waiver of his testimonial
                                           - 10 -
rights despite the petitioner not remembering the same. The post-conviction court further
determined trial counsel reviewed the pros and cons of the petitioner testifying at trial
with the petitioner and also noted “[the] [p]etitioner conceded that [t]rial [c]ounsel
advised him not to testify although he could not recall any other information during his
cross-examination.” Our review of the record supports the post-conviction court’s
findings as it is clear in the record trial counsel discussed the petitioner’s testimonial
rights with him during their pre-trial meetings. Further, the record indicates trial counsel
advised the petitioner against testifying based upon the State’s ability to impeach him,
and the petitioner admitted to the same. The petitioner is not entitled to relief.

       As detailed above, no evidence exists in the record to support the petitioner’s
attack on trial counsel’s performance or how the alleged deficient performance affected
the outcome of his trial. See Strickland, 466 U.S. at 687. The petitioner is not entitled to
post-conviction relief for his claim of ineffective assistance of counsel.

                                       Conclusion

      Based upon the foregoing authorities and reasoning, the judgment of the post-
conviction court is affirmed.



                                             ____________________________________
                                             J. ROSS DYER, JUDGE




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