                                                                                            12/05/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs November 7, 2017

                 RICCO WILLIAMS v. STATE OF TENNESSEE

                Appeal from the Circuit Court for Lauderdale County
                       No. 8856     Joe H. Walker, III, Judge
                     ___________________________________

                            No. W2016-02602-CCA-R3-PC
                        ___________________________________


Ricco Williams, the Petitioner, was convicted of various charges, and on appeal, this
court and the Tennessee Supreme Court affirmed three convictions of especially
aggravated kidnapping of three minor victims accomplished with a deadly weapon,
aggravated burglary, aggravated robbery accomplished with a deadly weapon, and
aggravated assault. The Petitioner timely filed a petition for post-conviction relief, which
the post-conviction court denied. On appeal, the Petitioner asserts that trial counsel’s
performance was deficient because he failed to: (1) request fingerprint testing on several
items of evidence; (2) file a motion to suppress the introduction of these items at trial; (3)
request a mistrial when two potential jurors stated during voir dire that they recognized
the Petitioner from his prior incarceration; (4) allow the Petitioner to negotiate directly
with the State regarding plea offers; and (5) move to dismiss the indictment “because one
count contained an inaccurate conviction.” The Petitioner asserts that he was prejudiced
by these deficiencies because “[t]he trial evidence circumstantially tied the [Petitioner] to
the crime” and “anything trial counsel could do to refute the circumstantial evidence
would be crucial for the jury to consider.” The Petitioner additionally asserts that, had he
“prevailed in a Motion to Suppress or Motion to Dismiss the Indictment[,] he would have
prevailed at trial.” After a thorough review of the facts and applicable case law, we
affirm.

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

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

Christy Cooper Davis, Greenfield, Tennessee, for the appellant, Ricco Williams.
Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Mark E. Davidson, District Attorney General; and Julie Pillow, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                         OPINION

                         I. Factual and Procedural Background

      In State v. Williams, the Tennessee Supreme Court summarized the factual and
procedural history of the Petitioner’s case as the following:

       The [Petitioner], along with two accomplices, broke into a family’s home
       while they were sleeping. Brandishing weapons, the intruders forced the
       family members to remain in the living room while they ransacked the
       home. The intruders later fled with money and jewelry. At trial, a [State v.
       White, 362 S.W.3d 559 (Tenn. 2012)] jury instruction was neither requested
       nor given. The jury convicted the [Petitioner] of numerous charges,
       including five counts of especially aggravated kidnapping of the husband,
       wife, and three children; aggravated burglary of the husband’s residence;
       and two counts of aggravated robbery of the husband and wife. The Court
       of Criminal Appeals affirmed the convictions for especially aggravated
       kidnapping, aggravated burglary, and one count of aggravated robbery as to
       the husband and modified the conviction of aggravated robbery of the wife
       to aggravated assault. On review, we remanded the case for consideration
       in light of White. The Court of Criminal Appeals affirmed the convictions
       of especially aggravated kidnapping as to the three children, but, in light of
       White and State v. Cecil, 409 S.W.3d 599 (Tenn. 2013), reversed the
       convictions of especially aggravated kidnapping as to the husband and wife
       and remanded those charges for a new trial.

468 S.W.3d 510, 511-12 (Tenn. 2015).

                                Post-Conviction Proceedings

       The Petitioner filed a timely pro se petition for post-conviction relief. At the post-
conviction hearing, the Petitioner testified that he met with trial counsel four or five times
prior to trial for thirty to forty-five minutes. He stated that he was with his wife in
Decatur, Georgia, at the time of the offenses, but trial counsel informed him that it would
not be in his best interest to assert an alibi defense. He also alleged that, during voir dire,
two potential jurors stated that they knew the Petitioner from a previous period of
                                             -2-
incarceration. He explained that he was prejudiced by trial counsel’s failure to request a
mistrial after the potential jurors’ statement because trial counsel selected jurors from the
jury pool that heard the potential jurors’ statements. The Petitioner also testified that he
did not receive discovery from trial counsel and that trial counsel failed to file a motion to
suppress or object to the admission of several pieces of evidence, including a wallet,1 a
tire iron, a handkerchief, and a firearm magazine. He explained that these pieces of
evidence were moved to different locations before they were photographed and tagged by
law enforcement for identification. He also stated that the photographs of the crime
scene showed that non-law enforcement individuals were inside the crime scene during
the investigation. Additionally, the Petitioner stated that the State introduced a prior
booking photograph into evidence to establish that he had previously worn a different
hair style. He stated that trial counsel’s failure to object to the admission of this
photograph prejudiced him because the booking photograph damaged his reputation with
the jury.

        Further, the Petitioner testified that trial counsel failed to file a motion to dismiss
the indictment because several counts mistakenly listed convictions from Illinois. The
post-conviction court noted that count ten of the indictment, possession of a firearm
having been previously convicted of a felony, was not read to the jury.2 The Petitioner
asserted that trial counsel failed to request that several pieces of evidence be tested for
fingerprints, including the tire iron, the firearm magazine, the wallet, and the
handkerchief. He also stated that he requested to negotiate for a plea directly with the
State, but trial counsel advised him that he should not speak to the State directly. Lastly,
the Petitioner stated that he asked trial counsel for an “evidentiary hearing[,]” but he
never received a hearing.

       On cross-examination, the Petitioner agreed that the State offered a plea offer of
twelve years at 100% service while the Public Defender’s Office represented him and
that he did not accept that plea offer. The Petitioner denied that trial counsel informed
him of other plea offers. He agreed that trial counsel filed a notice of alibi that named the
Petitioner’s wife as a potential alibi witness. The Petitioner denied that his wife testified
at a pre-trial hearing that she was not with the Petitioner while the offenses were
committed. He agreed that evidence was presented at trial that the wallet that was found
at the crime scene could not be tested for fingerprints because it was wet when it was
found. The Petitioner asserted that trial counsel did not spend enough time preparing for

        1
         Law enforcement found the Petitioner’s driver’s license inside the wallet. State v. Ricco R.
Williams, No. W2011-02365-CCA-R3-CD, 2013 WL 167285, at *5 (Tenn. Crim. App. Jan. 14, 2013),
perm. app. granted (Tenn. Aug. 21, 2013).
        2
          It appears from the record and prior opinions that the Petitioner’s case was bifurcated for counts
ten and eleven.
                                                   -3-
trial, particularly in preparing to cross-examine law enforcement witnesses about their
failure to utilize proper techniques when they secured and investigated the crime scene.
He agreed that, on appeal, counts ten and eleven of his indictment were dismissed and
that he was no longer serving his sentences for those convictions. He also agreed that the
two prospective jurors who recognized him from a prior incarceration were dismissed
from the jury pool.

       Trial counsel testified that he met with the Petitioner between five and ten times
during his representation. During these meetings, trial counsel discussed any plea offers
from the State, trial strategies, and discovery. More specifically, trial counsel discussed
with the Petitioner that the wallet was found at the crime scene and explained why the
wallet was damaging to the Petitioner’s case. He advised the Petitioner to accept a plea
offer because of the strong evidence against the Petitioner. He noted that he continued
negotiating with the State up to the day of trial. Trial counsel explained that he advised
the Petitioner not to speak to the State directly about plea negotiations because the State
could use any statement that the Petitioner made against him at trial. Trial counsel agreed
that the Petitioner informed him that his wife was his alibi witness. Trial counsel met
with her and determined that her testimony “[w]ould have been a disaster at trial.”
Therefore, trial counsel developed a trial strategy that focused on pointing out law
enforcement’s poor efforts at preserving the crime scene. He also argued that the
Petitioner “had lived next door [to the victims] and that the wallet could have got[ten]
there in . . . different ways, or that it could have been planted there due to the lady that
lived next door who [the Petitioner] had dated and was no longer dating.”

        On cross-examination, trial counsel clarified that the Petitioner’s alibi defense that
he was with his wife in Georgia during the offenses “was not accurate” and “wasn’t true.”
Trial counsel recalled that, in the Petitioner’s case, “on numerous occasions the procedure
for securing a crime scene . . . was not followed . . . the way it should have been,” and
trial counsel successfully argued that non-law enforcement individuals were in the crime
scene during its preservation and investigation. Trial counsel testified that he did not
object to the introduction of evidence found at the crime scene because he “didn’t feel
that [he] had a reasonable basis under the law to object as far as chain of custody goes or
any legal basis to object.” He explained that, while he believed that law enforcement did
a poor job of securing the crime scene, their negligence did not rise “to the level of
suppressing or excluding evidence on any . . . legal grounds[.]” Trial counsel noted that,
after two prospective jurors stated during voir dire that they recognized the Petitioner
from his previous incarceration, the trial court issued a curative instruction to the
remaining potential jurors. Further, trial counsel stated that he did not believe the
incident “influenced the outcome of this case.” Additionally, trial counsel stated that he
believed that the prior booking photograph that the State introduced to establish the
Petitioner’s prior hair style did not prejudice the Petitioner.
                                            -4-
        The post-conviction court denied relief in an order filed on October 10, 2016. The
post-conviction court found that “the attorneys for the [P]etitioner were adequate in the
preparation of the case.” More specifically, the post-conviction court found that trial
counsel “met with the [P]etitioner more than five times after reviewing all the
evidence[,]” “investigated all the witnesses, and the [Petitioner]’s eventual allegation of
alibi[,]” “prepar[ed] for a jury trial,” “constantly negotiate[ed] with the [State] for a
reduced plea offer[,]” and “presented the [Petitioner]’s request for a reduced bond and all
other issues that needed to be presented prior to trial.” The post-conviction court
concluded that trial counsel’s performance was not deficient in his preparation of the
Petitioner’s case. The post-conviction court credited trial counsel’s testimony. The post-
conviction court also found that trial counsel informed the Petitioner of “all plea offers
every time he met with [the] [P]etitioner[,]” “went over the possible sentences which
were more sever[e] than the plea offers[,]” and “went over the evidence with [the]
[P]etitioner, including the photographs, the wallet found at the scene with [the]
[P]etitioner’s identification, and all other evidence that was introduced.” The post-
conviction court concluded that trial counsel’s performance was not deficient in his
discussion of plea offers with the Petitioner.

        The post-conviction court found that trial counsel “spoke with the [Petitioner’s]
wife and determined it would be disastrous to call the wife” and concluded that trial
counsel’s performance was not deficient for failing to call the Petitioner’s wife at trial.
The post-conviction court also concluded that trial counsel “was not deficient with regard
to the photograph that was introduced[,] by not requiring the [S]tate to introduce
fingerprints for a conviction[,] by not requiring more with regard to the chain of
custody[,] and by not keeping [the Petitioner’s] wallet out of the evidence.” The post-
conviction court also noted that the Petitioner received a preliminary hearing. Regarding
the Petitioner’s claim that trial counsel should have filed a motion to dismiss the
indictment, the post-conviction court found that “[a]fter the jury returned a verdict[,] the
[Petitioner] stipulated to the other convictions as amended.” Regarding the Petitioner’s
allegation that trial counsel’s performance was deficient for failing to request a mistrial
after two potential jurors tainted the jury pool, the post-conviction court noted that
“[t]hose two jurors did not serve on the case, and a curative instruction was given. This
issue was raised on appeal and addressed by the appellate court, which found no
constitutional error.”

        The Petitioner now appeals the post-conviction court’s denial of relief. It appears
from the record that, after denying relief to the Petitioner, the post-conviction court
appointed appellate counsel to represent the Petitioner. However, appellate counsel
failed to file a timely notice of appeal, and the Petitioner later filed a motion to dismiss
appellate counsel. The post-conviction court appointed new appellate counsel, and the
                                           -5-
Petitioner filed an untimely notice of appeal on December 19, 2016. The Petitioner has
not formally asked this court to waive the timely filing requirement; however, the State
concedes that waiver is proper. Accordingly, we will waive the Petitioner’s timely filing
of the notice of appeal in the interests of justice. See Tenn. R. App. P. 4 (“. . . in all
criminal cases the ‘notice of appeal’ document is not jurisdictional and the timely filing
of such document may be waived in the interest of justice[]”).

                                        II. Analysis

       On appeal, the Petitioner argues that trial counsel’s representation was deficient
because trial counsel failed to: (1) request fingerprint testing on several items of
evidence; (2) file a motion to suppress the introduction of these items at trial; (3) request
a mistrial when two potential jurors stated during voir dire that they recognized the
Petitioner from his prior incarceration; (4) allow the Petitioner to negotiate directly with
the State regarding plea offers; and (5) move to dismiss the indictment “because one
count contained an inaccurate conviction.” The Petitioner asserts he was prejudiced by
these deficiencies because “[t]he trial evidence circumstantially tied the [Petitioner] to the
crime. Anything trial counsel could do to refute the circumstantial evidence would be
crucial for the jury to consider.” The Petitioner additionally asserts that, had he
“prevailed in a Motion to Suppress or Motion to Dismiss the Indictment[,] he would have
prevailed at trial.”

                                    Standard of Review

        In order to prevail on a petition for post-conviction relief, a petitioner must prove
all factual allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828,
830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and
fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Appellate courts are bound
by the post-conviction court’s factual findings unless the evidence preponderates against
such findings. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015). When reviewing
the post-conviction court’s factual findings, this court does not reweigh the evidence or
substitute its own inferences for those drawn by the post-conviction court. Id.; Fields, 40
S.W.3d at 456 (citing Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). Additionally,
“questions concerning the credibility of the witnesses, the weight and value to be given
their testimony, and the factual issues raised by the evidence are to be resolved by the
[post-conviction court].” Fields, 40 S.W.3d at 456 (citing Henley, 960 S.W.2d at 579);
see also Kendrick, 454 S.W.3d at 457. The post-conviction court’s conclusions of law
and application of the law to factual findings are reviewed de novo with no presumption
of correctness. Kendrick, 454 S.W.3d at 457.



                                            -6-
                             Ineffective Assistance of Counsel

         The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.
art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel,
a petitioner must prove: (1) that counsel’s performance was deficient; and (2) that the
deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);
see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that the same
standard for ineffective assistance of counsel applies in both federal and Tennessee
cases). Both factors must be proven in order for the court to grant post-conviction relief.
Strickland, 466 U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State, 938 S.W.2d 363,
370 (Tenn. 1996). Accordingly, if we determine that either factor is not satisfied, there is
no need to consider the other factor. Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007)
(citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)). Additionally, review of
counsel’s performance “requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S.
at 689; see also Henley, 960 S.W.2d at 579. We will not second-guess a reasonable trial
strategy, and we will not grant relief based on a sound, yet ultimately unsuccessful,
tactical decision. Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).

        As to the first prong of the Strickland analysis, “counsel’s performance is effective
if the advice given or the services rendered are within the range of competence demanded
of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that
counsel was deficient, the petitioner must demonstrate “that 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); see
also Baxter, 523 S.W.2d at 936.

        Even if counsel’s performance is deficient, the deficiency must have resulted in
prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong
of the Strickland analysis, 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.” Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks
omitted).




                                            -7-
                  (1) Failure to request fingerprint testing on evidence

       The Petitioner contends that trial counsel’s performance was deficient for failing
to request that items of evidence be tested for fingerprints, specifically, a wallet found
outside the victim’s home, a tire iron, a firearm magazine, and a handkerchief. He asserts
that he was prejudiced by this deficiency because “[t]he trial evidence circumstantially
tied the Petitioner to the crime[,]” and “[a]nything trial counsel could do to refute the
circumstantial evidence would be crucial for the jury to consider.”

       The Petitioner testified that trial counsel should have requested fingerprint testing
because these pieces of evidence were moved to different locations before they were
photographed and tagged by law enforcement for identification. However, he agreed that
the wallet that was found at the crime scene could not be tested for fingerprints because it
was wet when it was found. The post-conviction court concluded that trial counsel “was
not deficient . . . by not requiring the [S]tate to introduce fingerprints for a conviction[.]”

        Trial counsel has a duty to “conduct appropriate investigations, both factual and
legal, to determine what matters of defense can be developed.” Baxter, 523 S.W.2d at
933. “[C]ounsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary. In any ineffectiveness case, a
particular decision not to investigate must be directly assessed for reasonableness in all
the circumstances, applying a heavy measure of deference to counsel’s judgments.”
Strickland, 466 U.S. at 691; see also State v. Burns, 6 S.W.3d 453, 462 (Tenn. 1999).
However, “when a defendant has given counsel reason to believe that pursuing certain
investigations would be fruitless or even harmful, counsel’s failure to pursue those
investigations may not later be challenged as unreasonable.” Strickland, 466 U.S. at 691.

        Here, we agree with the post-conviction court’s conclusion that trial counsel’s
performance was not deficient for failing to request that certain pieces of evidence found
at the crime scene be tested for fingerprint evidence. Our opinion from the Petitioner’s
direct appeal notes that “[t]he investigators did not discover any fingerprint evidence and,
therefore, decided not to send any items to the crime laboratory for analysis.” Ricco R.
Williams, 2013 WL 167285, at *5. If there was no fingerprint evidence to test, then trial
counsel reasonably decided that requesting fingerprint testing of evidence was
unnecessary. See Strickland, 466 U.S. at 691. The Petitioner is not entitled to relief on
this ground.

           (2) Failure to file a motion to suppress the introduction of evidence

        Similarly, the Petitioner argues that trial counsel’s performance was deficient for
failing to file a motion to suppress the evidence against him and that he was prejudiced
                                             -8-
by this deficiency because “[a]nything trial counsel could do to refute the circumstantial
evidence would be crucial for the jury to consider.” Trial counsel testified that he did not
object to the introduction of evidence found at the crime scene because he “didn’t feel
that [he] had a reasonable basis under the law to object as far as chain of custody goes or
any legal basis to object.” He explained that, although he believed that law enforcement
did a poor job of securing the crime scene, their negligence did not rise “to the level of
suppressing or excluding evidence on any . . . legal grounds[.]” The post-conviction
court concluded that trial counsel “was not deficient . . . by not requiring more with
regard to the chain of custody[,] and by not keeping [the Petitioner’s] wallet out of the
evidence.”

        “If a petitioner alleges that trial counsel rendered ineffective assistance of counsel
by failing to . . . file a motion to suppress . . . the petitioner is generally obliged to present
the witness or the other evidence at the post-conviction hearing in order to satisfy the
Strickland prejudice prong.” Demarcus Sanders v. State, No. W2012-01685-CCA-R3-
PC, 2013 WL 6021415, at *4 (Tenn. Crim. App. Nov. 8, 2013) (citing Pylant v. State,
263 S.W.3d 854, 869 (Tenn. 2008)), perm. app. denied (Tenn. Mar. 17, 2014).

       We agree with the post-conviction court’s conclusion that trial counsel’s
performance was not deficient for failing to file a motion to suppress the evidence. The
Petitioner did not present any evidence or witnesses at the post-conviction hearing to
support a legal basis for the suppression of the evidence in his case. Further, trial
counsel, whose testimony the post-conviction court credited, testified that there was no
legal basis under which he could move for the suppression of evidence. The Petitioner is
not entitled to relief on this ground.

                      (3) Failure to request a mistrial during voir dire

       The Petitioner asserts that trial counsel’s performance was deficient for failing to
request a mistrial after two potential jurors stated during voir dire that they knew the
Petitioner from his prior period of incarceration.

        At the post-conviction hearing, the Petitioner testified that he was prejudiced by
trial counsel’s failure to request a mistrial after the potential jurors’ statements because
trial counsel selected jurors from the jury pool that heard the potential jurors’ statements.
After two prospective jurors stated during voir dire that they recognized the Petitioner
from his previous incarceration, the trial court issued a curative instruction to the
remaining potential jurors. Further, trial counsel stated that he did not believe the
incident “influenced the outcome of this case.” The post-conviction court noted that
“[t]hose two jurors did not serve on the case, and a curative instruction was given. This

                                              -9-
issue was raised on appeal and addressed by the appellate court, which found no
constitutional error.”

      In Ricco R. Williams, 2013 WL 167285, at *12, this court analyzed this issue
under plain error review:

               When both potential jurors disclosed their knowledge of the
       [Petitioner], the trial court excused them for cause and, in the case of the
       first juror, issued a curative instruction regarding the [Petitioner]’s previous
       status as an inmate at [the West Tennessee State Penitentiary]. During voir
       dire, the [Petitioner]’s counsel acknowledged the [Petitioner]’s convicted
       felon status and questioned the prospective jurors regarding each person’s
       ability to set aside that fact in examining the evidence at trial. No
       remaining prospective juror indicated any prejudice or bias concerning the
       [Petitioner]’s felon status. Later at trial, the parties stipulated that the
       [Petitioner] had been previously convicted of a felony. Furthermore, during
       the cross-examination of Ms. Cohill, the [Petitioner]’s counsel elicited from
       Ms. Cohill that she met the [Petitioner] while working at WTSP where the
       [Petitioner] was an inmate at the time. Under these circumstances, we
       perceive no error.

        We conclude that the Petitioner has not established that he was prejudiced by trial
counsel’s failure to request a mistrial. The record reflects that the trial court issued a
curative instruction after the prospective jurors acknowledged their familiarity with the
Petitioner. Further, the two prospective jurors were dismissed from the jury pool. Trial
counsel, whom the post-conviction court found credible, stated that he did not believe the
incident “influenced the outcome of this case.” The Petitioner is not entitled to relief on
this ground.

          (4) Failure to allow the Petitioner to negotiate directly with the State

        The Petitioner contends that trial counsel’s performance was deficient because
trial counsel advised against the Petitioner’s negotiating directly with the State about plea
offers. Trial counsel continued negotiating with the State up to the day of trial. He
advised the Petitioner not to speak to the State directly about plea negotiations because
the State could use any statement that the Petitioner made against him at trial. The post-
conviction court credited trial counsel’s testimony and found that trial counsel informed
the Petitioner of “all plea offers every time he met with [the] [P]etitioner.” The post-
conviction court concluded that trial counsel’s performance was not deficient in his
discussion of plea offers with the Petitioner. We agree with the post-conviction court that
trial counsel was not deficient for advising the Petitioner against speaking with the State
                                            - 10 -
directly. Additionally, the Petitioner was not prejudiced by trial counsel’s advice because
trial counsel informed the Petitioner of all of the State’s plea offers and continued
negotiating with the State for a favorable plea offer up to the day of trial. The Petitioner
is not entitled to relief on this ground.

        (5)Failure to request the dismissal of the indictment due to inaccuracies

       The Petitioner lastly asserts that trial counsel’s failure to request the dismissal of
the indictment was deficient representation. At the post-conviction hearing, the
Petitioner testified that trial counsel should have filed a motion to dismiss the indictment
because counts ten and eleven mistakenly listed convictions from Illinois. However, he
agreed that, on appeal, counts ten and eleven of his indictment were dismissed and that he
was no longer serving his sentences for those convictions. The post-conviction court
found that the Petitioner was not prejudiced by trial counsel’s failure to move to dismiss
the indictment.

        We note that the Petitioner did not introduce the indictment into evidence at the
post-conviction hearing or attach the indictment as an exhibit to his petition for post-
conviction relief. It is the duty of the appellant to prepare the appellate record. See State
v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993); see also Tenn. R. App. P. 24. Regardless,
this court reversed the Petitioner’s conviction for count ten and remanded for a new trial
and reversed and dismissed the Petitioner’s conviction for count eleven of the indictment.
Ricco R. Williams, 2013 WL 167285, at *1. The Petitioner has not established that he
was prejudiced by trial counsel’s failure to move to dismiss the indictment. He is not
entitled to relief on this ground.

                                      III. Conclusion

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

                                              ____________________________________
                                              ROBERT L. HOLLOWAY, JR., JUDGE




                                           - 11 -
