        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                   June 17, 2014 Session

                BILLY D. SIZEMORE v. STATE OF TENNESSEE

                    Appeal from the Circuit Court for Perry County
                      No. 2011-CR-42      Robbie T. Beal, Judge


                 No. M2013-01378-CCA-R3-PC - Filed August 21, 2014


Petitioner, Billy D. Sizemore, was convicted of theft over $1,000 and sentenced to twelve
years as a career offender. Petitioner filed the instant petition for post-conviction relief, in
which he alleged that he received ineffective assistance of counsel. Following an evidentiary
hearing, the post-conviction court denied relief. On appeal, petitioner argues that he received
ineffective assistance of counsel when trial counsel: (1) failed to challenge the value of the
stolen goods and (2) failed to seek a continuance after the State filed a late notice of intent
to seek enhanced punishment. After our review of the parties’ briefs, the record, and the
applicable law, we affirm the judgment of the post-conviction court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE, J., and
J. R OBERT C ARTER, J R., S P. J., joined.

Steven Garner (on appeal); and Talmage M. Woodall (at hearing), Franklin, Tennessee, for
the appellant, Billy Sizemore.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Lacy
Wilber, Assistant Attorney General; Kim R. Helper, District Attorney General; and Stacey
Brackeen Edmonson, Assistant District Attorney General, for the appellee, State of
Tennessee.
                                         OPINION

                                          I. Facts

                                    A. Facts from Trial

      In our opinion disposing of petitioner’s direct appeal, this court summarized the facts
from petitioner’s trial on June 12, 2009, as follows:

               Eugene Grinder, the victim in this case, owns property in Perry County,
       Tennessee. About eight years before trial, Mr. Grinder purchased about 5,000
       feet of six-foot wire fencing in seventy-two, irregular-sized rolls. Some of the
       rolls were bigger, and some were smaller. He paid $3,000 for the fencing. He
       left the wire fencing outside on this property. In January 2008, someone called
       the victim and told him they found a roll of the wire fencing. When he arrived
       at his property, the victim discovered that the majority of the wire fencing had
       been taken and just a few pieces of it were left.

               Christopher Reeves, Appellant’s co-defendant, testified that he was
       incarcerated at the time of trial. He stated that in January 2008, he and
       Appellant stole rolls of wire fencing from a property in Perry County. The two
       men loaded some of the wire into a truck. Mr. Reeves did not know what
       happened to the wire fencing because he returned home after loading it. The
       two men returned and loaded up more wire fencing into a red Chevy pick-up
       truck they borrowed from Herbert Dell Potter. On their way to Mr. Potter’s
       house, the truck broke down. After the truck was repaired, they returned to
       Mr. Potter’s house with the wire fencing. Mr. Potter was living with Kelly
       Pilatti at the time. The wire fencing was sold to Heather Georges and Trade
       Time, a local radio show.

               Mr. Potter and his wife, Kelly Potter, recalled that Appellant borrowed
       Mr. Potter’s pick-up truck in January 2008. When Appellant returned with the
       truck, the back of the truck was filled with twenty-five to thirty rolls of wire
       fencing about six feet high. The wire fencing was rusty. Appellant told Mr.
       Potter that the wire fencing was left over from a job erecting a fence. Mr.
       Potter and his wife admitted that they did not know where Appellant obtained
       the wire.

              Lewis County Sheriff’s Sergeant Tommy Franzen was informed that
       wire fencing had been stolen from Mr. Grinder’s property. He went to the

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      victim’s property and saw that some wire was still there. He contacted scrap
      metal places to see if anyone had attempted to sell any wire fencing. He was
      sent to the Pilatti’s residence. There Sergeant Franzen discovered twenty-one
      rolls of wire fencing. Mr. Grinder identified the rolls as belonging to him.
      While there, he spoke with Mr. Pilatti and both of the Potters. Appellant and
      his co-defendant were brought into the sheriff’s department for another reason,
      and Sergeant Franzen interviewed them about the wire fencing. Appellant told
      Sergeant Franzen he bought the wire fencing at a store for $85 a roll.

              Heather Georges was a close friend of Appellant. She recalled that she
      purchased a few rolls of wire fencing from Appellant in late December 2007
      or early January 2008. She purchased the wire fencing for use in her dog
      breeding business. When she returned from a dog show in Georgia, the wire
      fencing had been delivered. The wire fencing was rusty[,] and the rolls were
      all different sizes. On January 22, 2008, the police questioned her regarding
      her purchase of the wire fencing. When she learned it had been stolen, she
      gave it to the authorities.

             Joey Holt heard an advertisement for wire fencing on the Trade Time
      radio program. He purchased some wire for $25 a roll in January 2008. After
      he saw a newspaper article regarding wire fencing similar to that he purchased,
      he contacted the authorities. The sheriff’s department took the wire.

             On January 24, 2008, Perry County Sheriff’s Detective Mike Chandler
      was contacted by the Lewis County Sheriff’s Department. The Lewis County
      Sheriff’s Department provided the results of their investigation into the stolen
      wire fencing to Detective Mike Chandler. As a result, Detective Chandler
      obtained warrants for Appellant’s arrest.

             The Perry County Grand Jury indicted Appellant for one count of theft
      over $1,000. At the conclusion of a jury trial held on June 12, 2009, Appellant
      was found guilty as charged. The trial court sentenced Appellant to twelve
      years as a career offender. Appellant filed a timely notice of appeal.

State v. Billy D. Sizemore, No. M2009-01827-CCA-R3-CD, 2011 WL 345854, at *1-2 (Tenn.
Crim. App. Jan. 31, 2011).




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                               B. Facts from Post-Conviction Hearing

        At the February 15, 2013 hearing,1 petitioner testified that he met with trial counsel
three times prior to trial. He stated that trial counsel told him that “the case carried four
years.” Petitioner also identified a notice to seek an enhanced punishment and asserted that
he did not see this document until he “got all of [trial counsel’s] papers from [appellate
counsel].” Petitioner explained that while the document had been filed on June 12, 2009, he
did not see the document before his trial. He asserted that trial counsel never explained that
the State planned to seek an enhanced punishment if petitioner was convicted. Petitioner
averred that if he had known he was going to receive twelve years instead of four years, he
may have pleaded guilty instead of going to trial. Petitioner also identified a Perry County
Sheriff’s Department incident report and explained that the report stated that the value of the
stolen wire was seven dollars each and that sixty-four rolls of wire were found, which
altogether totaled $448. Petitioner testified that trial counsel never showed him this
document prior to trial. Petitioner stated that trial counsel never argued that the State’s
valuation of the fencing was incorrect and never cross-examined the investigating officer or
the victim about the value of the wire.

        During cross-examination, petitioner asserted that his trial strategy was to prove his
innocence but that if he had known he would be sentenced as a career offender, he might
have considered a plea agreement for four years. Petitioner conceded that he received a copy
of his criminal history as part of discovery but asserted that trial counsel did not tell him that
his nine prior felonies could be used to enhance his sentence. Petitioner acknowledged that
trial counsel filed a motion asking for a jury instruction regarding the jury’s ability to
determine the value of the wire fencing.

       Trial counsel testified next that he had been an attorney since 2004 and primarily
practiced juvenile, domestic, and criminal law. He stated that he was appointed to represent
petitioner in general sessions and circuit court. Trial counsel explained that he requested and
received discovery in petitioner’s case. Although he did not specifically remember
discussing petitioner’s criminal history with petitioner, he said his normal practice was to
review each conviction in the criminal history with his client and then explain the possible
range of punishment using a chart. Trial counsel testified that he did not know if he actually
used the words career offender but that he informed petitioner that “if found guilty, he would
be doing a lot more than five years.” Trial counsel explained that at the three office meetings
with petitioner, they would have discussed petitioner’s innocence and the trial strategy. His


        1
          Petitioner has abandoned several of the issues he raised in the post-conviction court on appeal;
therefore, our recitation of the facts from the post-conviction hearing will be limited to the issues raised on
appeal.

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trial strategy was to show that all the evidence, other than the co-defendant’s testimony, was
circumstantial and that there was no proof that the wire in petitioner’s possession was the
same wire that was stolen. He explained that the value of the wire did not affect their
strategy to prove innocence and that he requested the special jury instruction on value so that
the jury could consider it. However, the main focus was on petitioner’s innocence. Trial
counsel acknowledged that he filed several motions in limine regarding petitioner’s prior
convictions.

       During cross-examination, trial counsel agreed that determining the value of stolen
goods is important when handling a theft case because the value determines the possible
length of punishment. Trial counsel did not remember cross-examining the victim or the
investigating officer about the value of the stolen wire. He also did not remember reading
the incident report in this case but asserted that if it was produced in discovery, he read it.
Trial counsel conceded that there was a disparity between the victim’s testimony and the
incident report regarding the value of the stolen wire and that he did not file a motion to
dismiss based on the disparity.

        After hearing this testimony, the trial court denied post-conviction relief, finding that
trial counsel had informed petitioner of his sentencing exposure and that “even though [trial
counsel] may not have specific recollection [of] it, the Court accepts his statement of his
routine practice.” The court also stated:

       It’s difficult for the Court, in some regard, to determine whether an attorney
       has specifically advised a client on a fairly detailed issue, such as a notice of
       enhancement.

       ....

              The Court, again, believes that in this particular case, there is enough
       to convince the Court that that was provided to Mr. Sizemore. That even
       though [trial counsel] may not have specific recollection [of] it, the Court
       accepts his statement of his routine practice. In this case, he filed numerous
       motions addressing the previous convictions . . . that the defendant had. It
       would be outside the realm of logic that [trial counsel] would file all of these
       motions relating to the use of the defendant’s criminal record at trial, but not
       advise the defendant that the prior convictions could be used against him.

               Respectfully to the defendant, the Court finds it very difficult to believe
       that the defendant, just in a common sense framework, would not believe that
       his own record, his own extensive criminal record, could be used against him

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       for purposes of the sentencing. This defendant is no stranger to the court
       proceedings, and it would again defy the Court’s logic to some degree to
       believe that the defendant was caught by surprise that his previous felony
       convictions could actually be used against him. Again, that’s a very
       disingenuous type of statement to make[,] and the Court doesn’t accept it.

       ....

                The biggest issue . . . is did [trial counsel] make enough of the issue as
       it relates to the value of the property. That one particular point could give the
       Court considerable pause with regard to this proceeding if I believe that [trial
       counsel] just let a fairly important issue such as valuation slide by him. . . . We
       did hear evidence of all sorts and all types as to the valuation of this property.
       [Trial counsel] questioned witnesses, to some regard, with regard to the
       property. With some regard, he didn’t have to. It was being brought out by the
       State. And secondly, the Court agrees with the State that this wasn’t the main
       defense that [trial counsel] was proceeding on. His defense wasn’t valuation
       of property. His defense was Mr. Sizemore didn’t do it, he had nothing to do
       with it.

               It is difficult from an attorney’s perspective to argue alternative theories
       of innocence to a jury. And as a matter of trial strategy, [trial counsel] moved
       forward with the theory that his client was innocent of the charge completely
       and focused in on that. My court’s not going to go behind [trial counsel] and
       try to determine what trial strategy was more appropriate. The fact is, is that
       he made that decision. And he made that decision upon consulting his client.
       And the Court believes that that decision was reasonable.

                                          II. Analysis

        Petitioner argues that he received ineffective assistance of counsel when trial counsel
failed to challenge the value of the stolen goods and failed to seek a continuance after the
State filed a late notice of intent to seek enhanced punishment. The State responds that the
post-conviction court properly denied the petition for post-conviction relief. We agree with
the State.

                                    A. Standard of Review

        To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that
his or her “conviction or sentence is void or voidable because of the abridgement of any right

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guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Tenn.
Code Ann. § 40-30-103. A post-conviction petitioner bears the burden of proving his or her
factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f).
“‘Evidence is clear and convincing when there is no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.’” Lane v. State, 316 S.W.3d 555,
562 (Tenn. 2010) (quoting Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009)).

        Appellate courts do not reassess the trial court’s determination of the credibility of
witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing R.D.S. v. State, 245
S.W.3d 356, 362 (Tenn. 2008)). Assessing the credibility of witnesses is a matter entrusted
to the trial judge as the trier of fact. R.D.S., 245 S.W.3d at 362 (quoting State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996)). The post-conviction court’s findings of fact are conclusive on
appeal unless the preponderance of the evidence is otherwise. Berry v. State, 366 S.W.3d
160, 169 (Tenn. Crim. App. 2011) (citing 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)). However, conclusions
of law receive no presumption of correctness on appeal. Id. (citing Fields v. State, 40 S.W.3d
450, 453 (Tenn. 2001)). As a mixed question of law and fact, this court’s review of
petitioner’s ineffective assistance of counsel claims is de novo with no presumption of
correctness. Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011) (citations omitted).

        The Sixth Amendment to the United States Constitution, made applicable to the states
through the Fourteenth Amendment, and article I, section 9 of the Tennessee Constitution
require that a criminal defendant receive effective assistance of counsel. Cauthern v. State,
145 S.W.3d 571, 598 (Tenn. Crim. App. 2004) (citing Baxter v. Rose, 523 S.W.2d 930
(Tenn. 1975)). When a petitioner claims that he received ineffective assistance of counsel,
he must demonstrate both that his lawyer’s performance was deficient and that the deficiency
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Finch v. State,
226 S.W.3d 307, 315 (Tenn. 2007) (citation omitted). It follows that if this court holds that
either prong is not met, we are not compelled to consider the other prong. Carpenter v. State,
126 S.W.3d 879, 886 (Tenn. 2004).

       To prove that counsel’s performance was deficient, petitioner must establish that his
attorney’s conduct fell below an objective standard of “‘reasonableness under prevailing
professional norms.’” Finch, 226 S.W.3d at 315 (quoting Vaughn v. State, 202 S.W.3d 106,
116 (Tenn. 2006)). As our supreme court held:

       “[T]he assistance of counsel required under the Sixth Amendment is counsel
       reasonably likely to render and rendering reasonably effective assistance. It is
       a violation of this standard for defense counsel to deprive a criminal defendant
       of a substantial defense by his own ineffectiveness or incompetence. . . .

                                             -7-
       Defense counsel must perform at least as well as a lawyer with ordinary
       training and skill in the criminal law and must conscientiously protect his
       client’s interest, undeflected by conflicting considerations.”

Id. at 315-16 (quoting Baxter, 523 S.W.2d at 934-35). On appellate review of trial counsel’s
performance, this court “must make every effort to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct
from the perspective of counsel at that time.” Howell v. State, 185 S.W.3d 319, 326 (Tenn.
2006) (citing Strickland, 466 U.S. at 689).

         To prove that petitioner suffered prejudice as a result of counsel’s deficient
performance, he “must establish a reasonable probability that but for counsel’s errors the
result of the proceeding would have been different.” Vaughn, 202 S.W.3d at 116 (citing
Strickland, 466 U.S. at 694). “A ‘reasonable probability is a probability sufficient to
undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at 694). As such,
petitioner must establish that his attorney’s deficient performance was of such magnitude that
he was deprived of a fair trial and that the reliability of the outcome was called into question.
Finch, 226 S.W.3d at 316 (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999)).

                                  B. Value of Stolen Goods

         The post-conviction court concluded that trial counsel’s conduct at trial was
reasonable based on the trial strategy. This determination is supported by the record. While
value is an important issue in a theft case, trial counsel proceeded on a theory of innocence
at trial and properly challenged the State’s evidence in that regard. Trial counsel explained
that the value of the wire did not affect the strategy to prove innocence and that he requested
the special jury instruction on value so that the jury could consider it. However, the main
focus was on petitioner’s innocence.

       On appellate review of trial counsel’s performance, this court “must make every effort
to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
conduct, and to evaluate the conduct from the perspective of counsel at that time.” Howell,
185 S.W.3d at 326 (citing Strickland, 466 U.S. at 689). Furthermore, this court gives
deference to matters of trial strategy as long as the strategy is based on informed and
adequate representation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Trial counsel
proceeded on a valid and sound trial strategy of innocence, and we determine that, in this
context, his failure to rely on the incident report for valuation did not fall below an objective
standard of reasonableness under the prevailing professional norms. In addition, the trial
court also stated, and the trial transcripts reflect, that the court heard evidence “of all sorts
and all types as to the valuation of this property.” The jury was also instructed as follows:

                                               -8-
               The State has the burden of proving this value beyond a reasonable
        doubt, as defined in these instructions.

                The jury will fix the value of property or services obtained, along with
        its verdict, by indicating which of the following ranges the value falls within:

                 (1) $1,000 or more, but less than $10,000; or

                 (2) more than $500, but less than $1,000; or

                 (3) $500 or less.

Therefore, petitioner has failed to show that even if the value had been challenged, there is
a reasonable probability that the outcome of the trial would have been different. Petitioner
is without relief as to this issue.

                                 C. Notice of Enhanced Punishment

       Petitioner also argues that trial counsel was ineffective because he failed to request
a continuance after the State filed a late notice of intent to seek enhanced punishment.
Specifically, he argues that the notice was ambiguous because the title had the words
“Multiple Offender” whereas the body of the notice stated “Career offender” and that,
furthermore, because of the late filing, counsel never informed petitioner that he might be
sentenced as a career offender.2 However, the post-conviction court concluded that petitioner
was “no stranger to the court proceedings, and it would again defy the Court’s logic to some
degree to believe that the defendant was caught by surprise that his previous felony
convictions could actually be used against him.” The court also determined that trial counsel
had advised petitioner of his sentencing exposure because it would defy logic that trial
counsel would file numerous motions to limit the use of petitioner’s prior convictions at trial
yet not inform petitioner of his sentencing exposure due to those same convictions.
Furthermore, although he did not specifically remember discussing petitioner’s criminal
history with petitioner, he said his normal practice was to review each conviction in the


        2
          We note that petitioner has reframed this issue on appeal. In the post-conviction court, petitioner
argued that due to the late notice of intent to seek enhanced punishment, trial counsel did not properly advise
petitioner of his sentencing exposure as a career offender. It is only on appeal that petitioner argues that it
was ineffective for trial counsel not to file a motion to continue. However, instead of waiving this issue
altogether, we will address the underlying issue of whether trial counsel was ineffective for failing to
properly advise petitioner of his sentencing exposure because the issue essentially rests on the same grounds
regardless of its presentation.

                                                     -9-
criminal history with his client and then explain the possible range of punishment using a
chart. Trial counsel also testified that he did not know if he actually used the words career
offender but that he informed petitioner that “if found guilty, he would be doing a lot more
than five years.”

       To prove that counsel’s performance was deficient, petitioner must establish that his
attorney’s conduct fell below an objective standard of “‘reasonableness under prevailing
professional norms.’” Finch, 226 S.W.3d at 315 (quoting Vaughn, 202 S.W.3d at 116).
Even if the notice of enhancement was ambiguous, petitioner has failed to show trial counsel
was deficient because petitioner was well aware of his nine prior felony convictions and
because trial counsel had previously explained petitioner’s sentencing exposure. Petitioner
is without relief as to this issue.

                                     CONCLUSION

      Based on the parties’ arguments, the record, and the applicable law, we affirm the
judgment of the post-conviction court.


                                                   _________________________________
                                                   ROGER A. PAGE, JUDGE




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