        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                               August 18, 2015 Session

               VICTOR McMILLER v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Sullivan County
                   No. C62299     James F. Goodwin, Jr., Judge


              No. E2014-02132-CCA-R3-PC – Filed December 14, 2015


The petitioner, Victor McMiller, appeals the denial of post-conviction relief from his
2009 Sullivan County Criminal Court jury convictions of the sale and delivery of a
Schedule III controlled substance, claiming 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 CAMILLE R.
MCMULLEN and TIMOTHY L. EASTER, JJ., joined.

Bryce W. McKenzie (on appeal), Sevierville, Tennessee; and Brandon Sizemore (at
hearing), Johnson City, Tennessee, for the appellant, Victor McMiller.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Barry Staubus, District Attorney General; and Kent Chitwood, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                       OPINION

             A Sullivan County Criminal Court jury convicted the petitioner of two
counts of the sale and two counts of the delivery of dihydrocodeinone, a Schedule III
controlled substance. The trial court imposed an effective sentence of 24 years. This
court affirmed the judgments on direct appeal. See State v. Victor D. McMiller, No.
E2010-01558-CCA-R3-CD, slip op. at 1 (Tenn. Crim. App., Knoxville, Dec. 6, 2011),
perm. app. denied (Tenn. May 10, 2012).

            In Victor D. McMiller, this court stated the facts of the case. The evidence
showed that the Kingsport Police Department used a confidential informant, Patricia
Wise, to complete controlled purchases of Lortabs from the petitioner on February 11 and
April 23, 2008. Victor D. McMiller, slip op. at 1-3. At trial, Jessica Hooker, the
petitioner‟s estranged wife, testified for the State as follows:

                       Jessica Hooker testified that she sold Lortabs to
               Patricia Wise on January 28, 2008. Ms. Wise asked Ms.
               Hooker if she knew where she could get some Lortab pills,
               and Ms. Hooker responded that she could get them from [the
               petitioner], her then boyfriend. Ms. Hooker was married to
               [the petitioner] at the time of [the petitioner‟s] trial, but they
               were separated. Ms. Hooker testified that [the petitioner] had
               a prescription for them because he had degenerative bone
               disease. Ms. Wise went to [the petitioner‟s] apartment, and
               Ms. Hooker sold her the pills. Ms. Hooker later gave the
               money to [the petitioner]. Ms. Hooker sold pills to Ms. Wise
               on another occasion in March, 2008. The transaction again
               took place in [the petitioner‟s] apartment in the bedroom.
               [The petitioner] told Ms. Hooker that he had sold pills and
               that if she knew anyone who wanted to buy some, that he had
               them to sell. Ms. Hooker was charged with two counts each
               of the sale and delivery of dihydrocodeinone, to which she
               pled guilty. Ms. Hooker testified that [the petitioner] was not
               present in his apartment for the January transaction, but he
               was present for the March transaction. Ms. Hooker testified
               on cross-examination that she did not have any personal
               knowledge that [the petitioner] sold Lortabs to Ms. Wise on
               February 11th or April 23rd, and she never saw him sell
               Lortabs to anyone. Following a juryout hearing, on redirect
               examination, Ms. Hooker clarified that she had not seen [the
               petitioner] sell Lortabs to anyone during the time period of
               these offenses, but that he had told her that he was selling
               Lortabs.

Id., slip op. at 3-4.

              On May 8, 2013, 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. On October 8, 2014, the post-conviction court conducted an evidentiary
hearing.

              At the evidentiary hearing, trial counsel testified that, prior to trial, he had
objected to the State‟s calling Ms. Hooker as a witness at trial. Trial counsel based his
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objection in part on the fact that Ms. Hooker‟s testimony would likely reveal the
petitioner‟s prior bad acts. The trial court ordered that Ms. Hooker could not testify
about conversations she had with the petitioner regarding drug transactions other than
those for which the petitioner was on trial. Trial counsel denied opening the door to such
testimony during his cross-examination of Ms. Hooker, explaining that he had
“specifically tailored” his questions to Ms. Hooker to comply with the court‟s order.
Trial counsel stated that he asked Ms. Hooker if she had “any personal knowledge that
[the petitioner] sold drugs to Pat Wise on February 11th” and whether she ever “saw [the
petitioner] sell Lortabs to anybody,” and Ms. Hooker responded to both questions in the
negative. The prosecutor then objected, stating that trial counsel had unintentionally
misled the jury by asking Ms. Hooker, “You don‟t have personal knowledge that he sold
drugs to anyone.” Trial counsel testified that the prosecutor had mistakenly combined
trial counsel‟s questions and had convinced the trial court that the door had been opened
to introduce evidence of the petitioner‟s prior bad acts.

                Trial counsel recalled that the petitioner had requested that he call his
parole officer, Lisa Barker, as a witness at trial. Trial counsel interviewed Ms. Barker
and decided against calling her as a witness because, first, she had indicated that the
petitioner had not been doing well on parole, and, second, she would have been unable to
testify to certain self-serving statements the petitioner had made.

               With respect to the communication of plea offers, trial counsel testified that
he “[a]bsolutely” communicated all offers to the petitioner. Trial counsel explained that
he was the second attorney to handle the petitioner‟s case and that the original attorney
had advised the petitioner of the initial offer of six years as a Range I offender. Under
trial counsel‟s representation, the State lowered its offer to five years, which trial counsel
conveyed to the petitioner in a letter dated March 31, 2009. Trial counsel read the letter
aloud and noted that, in it, he had cautioned the petitioner to consider the Range I offer
because the petitioner was “„in fact a Range III offender‟” and that if he went to trial and
was convicted he “„would be facing 15 years at 45%.‟” One week prior to trial, the State
again reduced its offer to four years. Trial counsel again relayed the new offer to the
petitioner, and he “adamantly rejected it.”

               The petitioner testified that trial counsel never conveyed any plea offers to
him, and he insisted that, had he known the State was offering him a sentence of five
years, he “would have hurried up and jumped on it.” The petitioner denied that he was
doing poorly on parole, claiming that he had reported as scheduled and that he had passed
all drug screens. On cross-examination, the State asked the petitioner about a letter,
dated April 23, 2009, that he had written to trial counsel, in which the petitioner asked
trial counsel to “come and see me . . . at Blountville jail” and ended with the phrase “No
plea barga[i]n.” The petitioner denied that this letter indicated a rejection of the State‟s
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most recent plea offer, explaining that he was merely informing trial counsel that another,
unnamed attorney had told him about the plea offer and that he had been unaware of the
offer.

               In the post-conviction court‟s comprehensive order denying post-conviction
relief, the court found that the petitioner failed to prove the allegations of ineffective
assistance of counsel by clear and convincing evidence. With respect to trial counsel‟s
failure to call Ms. Barker as a witness, the court specifically accredited the testimony of
trial counsel that Ms. Barker‟s testimony would have been detrimental to the petitioner‟s
case and found that trial counsel “made professional judgments regarding those witnesses
that he would call on behalf of [the p]etitioner that would fit within their agreed trial
strategy.” The post-conviction court specifically found that trial counsel “did not in fact
ask a question during cross[-]examination of Ms. Hooker that „opened the door‟ to
damaging or prejudicial testimony.” Although the State successfully convinced the trial
court that Ms. Hooker had opened the door, the post-conviction court found that trial
counsel “took appropriate steps to minimize the effect on the jury” by “suggesting a
limiting instruction be given to the jury,” and the trial court did “limit the jury‟s use of
the testimony.” With respect to the petitioner‟s arrest warrant, the post-conviction court
found that trial counsel and the petitioner had “discussed the validity of the arrest warrant
on several occasions” and that trial counsel had determined the warrant to be valid.
Finally, the post-conviction court accredited the testimony of trial counsel that he
communicated all plea offers to the petitioner and that the petitioner rejected all offers.

               In this appeal, the petitioner reiterates his claims of ineffective assistance of
counsel, claiming that trial counsel performed deficiently by opening the door to and
failing to object to evidence of the petitioner‟s prior bad acts, by failing to challenge the
legality of the petitioner‟s arrest, by failing to call Ms. Barker as a witness at trial, and by
failing to communicate plea offers to the petitioner. 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 abridgement 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
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
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(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 reviewing 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, 454
S.W.3d at 458 (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. 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. Fields, 40 S.W.3d at 457-58; see also State v. England, 19
S.W.3d 762, 766 (Tenn. 2000).

                    I. Failure to Prevent Testimony of Prior Bad Acts




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               The petitioner first contends that trial counsel was ineffective by opening
the door to testimony of the petitioner‟s prior bad acts and by then failing to object to said
testimony. We disagree.

             During trial counsel‟s cross examination of Ms. Hooker at trial, the
following exchange occurred:

              Q:     You don‟t have any evidence or any personal
                     knowledge that [the petitioner] sold drugs to Pat Wise
                     on February 11th.

              A:     No, I don‟t.

              Q:     You didn‟t see any transaction whereby [the petitioner]
                     sold Lortabs to Pat Wise on April 23rd.

              A:     No, I don‟t [sic].

              Q:     In fact you were married [to] this man, you never saw
                     him sell Lortabs to anybody did you?

              A:     No, I didn‟t.

(Emphasis added).

               The State then requested a bench conference and mistakenly informed the
trial court that trial counsel had just asked Ms. Hooker whether she had “personal
knowledge” that the petitioner “sold drugs to anyone.”             The prosecutor then
acknowledged that Ms. Hooker “didn‟t observe [the petitioner] sell drugs to anyone,”
stating that the petitioner had “told her these drugs were available for sale,” and that,
thus, Ms. Hooker‟s testimony was misleading. The trial court permitted the prosecutor to
question Ms. Hooker, outside the presence of the jury, about her knowledge of the sale of
drugs to Ms. Wise:

              Q:     Did the [petitioner] tell you that he was going to or did
                     sell drugs to Patricia Wise on February 11th?

              A:     No, he didn‟t.

              Q:     Did he tell you that he was going to or had sold drugs
                     to Patricia Wise on April 23rd?
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              A:     No, he didn‟t.

              Q:     During this period of time from January to April did
                     you know he sold drugs?

              A:     Yes, I did.

              Q:     How did you know that?

              A:     Because he told me.

              Q:     Okay, and did he also tell you that these drugs were
                     available for sale, his Lortabs?

              A:     Yes, he did.

               Trial counsel, apparently unaware that the prosecutor had misconstrued his
final cross-examination question, agreed that Ms. Hooker‟s testimony was misleading
and suggested that the prosecutor be allowed to question Ms. Hooker on whether the
petitioner had told her that he had sold drugs. The trial court found this to be an
acceptable solution and inquired whether trial counsel sought a curative instruction; trial
counsel responded in the affirmative. The jury returned to the courtroom, and, on
redirect examination, Ms. Hooker testified that the petitioner had told her on more than
one occasion that he was selling Lortabs. The trial court then admonished the jury that it
could not “consider such evidence to prove [the petitioner‟s] disposition to commit the
crime for which he‟s on trial in this case.” Instead, the court instructed, the jury could
use such evidence “for the limited purpose of determining whether it provides a complete
story of the crime in this case.”

              On direct appeal, the petitioner argued that the trial court erred by
permitting Ms. Hooker to testify that the petitioner had sold Lortabs on prior occasions,
and the State responded that the petitioner had waived the issue by failing to object and
instead requesting only a curative instruction. Victor D. McMiller, slip op. at 8. This
court agreed that the petitioner had waived the issue by failing to lodge a
contemporaneous objection and found that trial counsel had “opened the door to [Ms.
Hooker‟s] testimony of [the petitioner‟s] prior drug sales by asking her about her
knowledge of it during cross-examination.” Id., slip op. at 12. In the instant appeal, the
petitioner now argues that this court‟s ruling in Victor D. McMiller evinces trial counsel‟s
deficient performance.

                                            -7-
               Trial counsel‟s performance, however, cannot be considered deficient when
he did not, in fact, open the door to testimony of prior drug sales. A careful reading of
the trial testimony reveals that trial counsel did not ask Ms. Hooker whether she had
personal knowledge that the petitioner had sold Lortabs to anyone; trial counsel simply
asked Ms. Hooker whether she had personal knowledge of the petitioner‟s selling drugs
to Ms. Wise on February 11th and whether Ms. Hooker had ever seen the petitioner sell
Lortabs to anyone, and Ms. Hooker responded in the negative to both questions. It
appears that the prosecutor mistakenly combined these two questions when arguing that
trial counsel had opened the door. Because trial counsel committed no error in
conducting his cross-examination of Ms. Hooker, the petitioner has failed to show that
trial counsel‟s representation was deficient in this regard.

                         II. Failure to Challenge Arrest Warrant

              Next, the petitioner argues that trial counsel was ineffective by failing to
challenge the validity of his arrest warrant. The petitioner, however, failed to introduce
into evidence either the capias or the arrest warrant. The burden is on the petitioner to
prove his allegations by clear and convincing evidence, see T.C.A. § 40-30-110(f), which
burden includes preparing an adequate record on appeal, see State v. Ballard, 855 S.W.2d
557, 560 (Tenn. 1993). Because the petitioner failed to file an adequate record, this court
must presume the lower court‟s ruling that trial counsel was not deficient in this regard
was correct. See State v. Richardson, 875 S.W.2d 671, 674 (Tenn. Crim. App. 1993).

                               III. Failure to Call Witness

             The petitioner next contends that trial counsel was ineffective by failing to
call Ms. Barker as a witness at trial. Again, we disagree.

               The petitioner failed to present Ms. Barker as a witness at the evidentiary
hearing. As such, we cannot speculate how she might have testified at trial. See Black v.
State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990) (“When a petitioner contends that
trial counsel failed to discover, interview, or present witnesses in support of his defense,
these witnesses should be presented by the petitioner at the evidentiary hearing.”).
Furthermore, trial counsel‟s reasoning for not calling this witness – that her testimony
would have been detrimental to the petitioner – was a “reasonably based trial strategy”
that we will not “second-guess.” See Adkins, 911 S.W.2d at 347.

                         IV. Failure to Communicate Plea Offers

             Finally, the petitioner argues that trial counsel was ineffective by failing to
convey to him plea offers from the State. In our view, the record fully supports the ruling
                                            -8-
of the post-conviction court. The explicitly accredited testimony of trial counsel on this
point, as well as the letters introduced into evidence at the hearing, evince trial counsel‟s
conveyance of the plea offers and the petitioner‟s rejection of the same. This issue is
without merit.

                                        Conclusion

               The petitioner has failed to prove by clear and convincing evidence that
trial counsel‟s representation was deficient or prejudicial. Accordingly, the judgment of
the post-conviction court is affirmed.

                                                   _________________________________
                                                  JAMES CURWOOD WITT, JR., JUDGE




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