                                                                                          11/14/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                              September 12, 2017 Session

         ERIC DEMOND MCCATHERN v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                  No. 2009-C-2600 Cheryl A. Blackburn, Judge
                     ___________________________________

                           No. M2016-02143-CCA-R3-PC
                       ___________________________________


The Petitioner, Eric Demond McCathern, was convicted after a jury trial of possession of
twenty-six or more grams of a substance containing cocaine within one thousand feet of a
school with the intent to sell or deliver, possession of drug paraphernalia, and aggravated
burglary committed with the intent to commit possession of a substance containing
cocaine with the intent to sell or deliver. After this court denied relief on direct appeal,
the Petitioner filed a post-conviction petition alleging ineffective assistance of counsel.
The Petitioner asserts that his trial counsel performed deficiently in advising him to plead
guilty to aggravated burglary during trial because the plea essentially conceded elements
of the contested drug charge. The Petitioner also asserts that trial counsel was deficient
in failing to request a severance or move to suppress evidence. The post-conviction court
denied relief. After a review of the record, we conclude that the Petitioner has not
established prejudice, and we affirm the judgment of the post-conviction court.


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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Jessica Van Dyke, Nashville, Tennessee, for the appellant, Eric Demond McCathern.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Assistant
Attorney General; Glenn Funk, District Attorney General; and Megan King, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                                  OPINION

                          FACTUAL AND PROCEDURAL HISTORY

                                                     Trial

       The Petitioner was tried twice for the offenses at issue, with the first trial resulting
in a hung jury. The evidence presented at both trials was that a “Flex” team of
Metropolitan Nashville police officers approached an area known as “the Hilltop,” where
they were aware that drug trafficking was taking place. Because of the area’s
topography, prior attempts to surprise drug activity had been unsuccessful, as police
vehicles could be seen approaching from a distance. On the night of May 23, 2007, three
officers parked several blocks away and approached on foot. They observed a stopped
vehicle and saw two men, the Petitioner and his co-defendant, approach the vehicle.
Officers suspected a drug transaction.

       The Petitioner and the co-defendant walked away from the vehicle to a nearby
apartment unit. The unit was completely dark and appeared abandoned. The Petitioner
entered the waist-high window, and the co-defendant had put his torso through the
window when police called for him to stop. The co-defendant appeared to put something
down and moved away from the window. On the window sill, police discovered a gun;
immediately inside, on the floor next to the window, were two digital scales and a small
quantity of cocaine. Officers called for the Petitioner to exit the apartment, which he did
through another window. The Petitioner was carrying $163. He did not have a
telephone.

         After being informed of his right to remain silent, the Petitioner stated that he did
not live at the residence. Officers searched the residence, which appeared uninhabited.
Only two pieces of furniture were in the apartment: plastic chairs placed immediately in
front of the two windows. One chair had a jacket hung over the back of it. There was no
edible food, no other furniture, and no other clothing or personal items. One room had
trash and feces1 on the floor. In the closed oven, officers found a large quantity of
cocaine. Plastic sandwich baggies were laid out in the kitchen. Officers had not heard
the oven door open while the Petitioner was inside the building, and they did not attempt
to lift fingerprints from the oven. The Petitioner was in the apartment “[m]aybe a minute,
maybe two.”




       1
           At the first trial, one of the officers testified that a puppy had apparently been kept in the room.
                                                      -2-
        The manager of the apartment building testified at both trials. In the first trial, he
testified that he had boarded up the door to the unit because he had rented it but the
tenants never moved in, instead positioning a chair in front of a window. He testified that
the leaseholder’s name was Eric Davis. At the second trial, the manager merely testified
that the apartment was rented but not occupied and that he had told the tenants that they
needed to move in, turn on utilities, and otherwise live there. He testified that they had
“taken possession of it” but only by putting a chair at a window and it appeared as though
they were not living there.

       At the beginning of the first trial, after the indictment was read, the Petitioner
stated that he would plead guilty “to the burglary” and plead not guilty to the other
charges. The trial proceeded without further colloquy regarding this plea. At the close of
the State’s proof, trial counsel moved for judgment of acquittal, arguing that there was no
evidence that the Petitioner knew about the drugs in the oven. The trial court expressed
its understanding that the Petitioner had pled guilty to burglary but not aggravated
burglary, and then the judge proceeded to draw attention to the fact that as part of the
burglary charge, the Petitioner had admitted that he was intending to commit a felony
inside the residence. The court stated that based on the plea, it would deny the motion
for judgment of acquittal on the other counts. The court also noted that because the
Petitioner’s plea was to a lesser-included offense, it would still charge the jury with the
greater offense of aggravated burglary.

       During closing argument, trial counsel argued that the Petitioner had
acknowledged entering the abandoned building but that the State had not proven he had
any possessory interest in the drugs in the oven. In response to the prosecution’s
argument emphasizing the underlying felony in the aggravated burglary count, trial
counsel implied that the Petitioner was making an unsuccessful attempt to burglarize an
existing drug house. The prosecutor noted that there was no real dispute regarding the
quantity of drugs or the fact that the crime occurred in a school zone. In arguing that the
elements were established, the prosecutor reminded the jury that the Petitioner had “pled
guilty to burglary, which includes possession and intent, so he’s pled guilty to that. He
was acknowledging he was in the house, I guess, but that contains the component of
committing a felony, which the felony is possession for resale.”

       The jury was unable to reach a verdict on any of the charges during the August
2010 trial, and the trial court declared a mistrial on all three counts. The case was retried
on April 4-5, 2011, in front of a different judge.




                                            -3-
        During the second trial, the Petitioner, after the reading of the indictment,2 pled
guilty to aggravated burglary and pled not guilty to the remaining charges. No colloquy
was held regarding the plea. After testimony that largely replicated that of the first trial,
trial counsel argued that the vehicle involved in the alleged transaction never existed and
argued again that the State had not proven possession. Trial counsel did not argue at the
second trial that that the Petitioner was attempting to burglarize an existing drug house.
In response, the State argued:

        I would ask you to look at the plea the defendant has made to you. And
        don’t forget a component of that, as we discussed several times, is breaking
        into a facility with intent to commit this felony. His plea to Count 1, I
        submit to you, sheds great light on Count 2.

       At the Petitioner’s request, the trial court charged the jury with aggravated
burglary. The Petitioner did not object to the trial court’s statement that it would not
charge any lesser included offenses on that count.

       The jury convicted the Petitioner as charged of all three offenses, and he was
sentenced to serve thirty-five years in prison. The Petitioner’s appellate counsel
challenged the sufficiency of the evidence and his consecutive sentences, and this court
affirmed the convictions and sentences on appeal. State v. Eric Demond McCathern, No.
M2011-01612-CCA-R3-CD, 2012 WL 5949096, at *1 (Tenn. Crim. App. Nov. 16, 2012)
perm. app. denied (Tenn. Feb. 25, 2013).


                                          Post-Conviction

        The Petitioner filed a timely post-conviction petition. At the post-conviction
hearing, trial counsel testified that his records regarding the Petitioner’s case had been
destroyed. Trial counsel stated that the strategy at trial was to dissociate the Petitioner
from the drugs in the oven because the drug charge carried a much longer sentence.
Consequently, despite the fact that the Petitioner told trial counsel that he had used an
alias to rent the apartment and was the rightful tenant, trial counsel did not attempt to
assert standing to suppress the results of the search of the apartment. Trial counsel
testified that the prosecution had not “put it together” that the property was rented by the
Petitioner and that the Petitioner “didn’t want to tell anybody that” because “it was
obvious it was … a house that they were selling dope out of.”


        2
          The transcript submitted as a supplemental record on appeal begins with the reading of Count 3
of the indictment.
                                                 -4-
       Trial counsel advised the Petitioner to plead guilty to burglary which “took Judge
Norman back a little bit.” Trial counsel felt the first trial, which resulted in a hung jury,
was successful, so he used the same strategy at the second trial. He did not consider
moving to sever the charges when the Petitioner pled guilty to the aggravated burglary
charge.

        The Petitioner testified that he had a seventh-grade education and that he found
trial counsel when he was looking for attorneys through “other drug dealers.” He
confirmed that he had rented the apartment in question under the alias “Eric Davis.” The
Petitioner agreed with trial counsel that the strategy was to dissociate himself from the
property in question. To that end, trial counsel told him to ask his mother to bring “some
smaller pants and a shirt that’s real raggedy” for trial in order to make him look like a
burglar rather than a drug dealer. Trial counsel told him to plead guilty to the burglary
charge but did not discuss the strategy further. The Petitioner did not understand the
difference between burglary and aggravated burglary, so he pled guilty to burglary in the
first trial. Prior to the second trial, trial counsel again told him to plead guilty to
aggravated burglary, informing him it was “the only way that Judge Blackburn wouldn’t
hammer [him].” The Petitioner denied having ever been released from prison prior to his
trial, but he later acknowledged that he “went on the run” in 2008. The Petitioner also
testified that he only had three and not five prior felonies, although the transcript of the
sentencing hearing reflects he had five prior felonies.

       The post-conviction court denied relief, finding that the advice to plead guilty on
the aggravated burglary charge was a reasonable strategic decision. The post-conviction
court found that the Petitioner had not demonstrated that either the suppression motion or
the severance motion would have been granted. The Petitioner appeals.

                                       ANALYSIS

       The Petitioner argues that his trial counsel’s advice to plead guilty to aggravated
burglary was deficient because in pleading guilty, he was also conceding contested
elements of the drug charge. He argues in the alternative that trial counsel should have
sought a severance of the offense to which he pled guilty. As a third alternative, the
Petitioner asserts trial counsel was deficient in failing to assert his standing to suppress
evidence recovered in the search of the apartment.

       Under the Post-Conviction Procedure Act, a petitioner is entitled to relief 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.”
Tenn. Code Ann. § 40-30-103. The burden of proving allegations of fact by clear and
convincing evidence falls to the petitioner seeking relief. Tenn. Code Ann. § 40-30-
                                            -5-
110(f). The post-conviction court’s findings of fact are binding on the appellate court
unless the evidence preponderates against them. Kendrick v. State, 454 S.W.3d 450, 457
(Tenn. 2015). Accordingly, the reviewing court defers to the post-conviction court’s
findings regarding the credibility of witness, the weight and value of witness testimony,
and the resolution of factual issues. Id. Questions of law and mixed questions of law and
fact are reviewed de novo. Id. Each element of a claim of ineffective assistance of
counsel is a mixed question of fact and law reviewed de novo. Id.

       Under the Sixth Amendment to the United States Constitution and article I, section
9 of the Tennessee Constitution, the accused is guaranteed the right to effective assistance
of counsel. Moore v. State, 485 S.W.3d 411, 418 (Tenn. 2016). To prevail on a claim
that he was denied his constitutional right to effective assistance of counsel, a petitioner
must prove both that counsel’s performance was deficient and that the deficient
performance caused prejudice to the defense. Kendrick, 454 S.W.3d at 457 (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)). A claim may be denied for failure
to establish either deficiency or prejudice, and the reviewing court need not address both
components if a petitioner has failed to establish one. Goad v. State, 938 S.W.2d 363,
370 (Tenn. 1996).

        “Establishing deficient performance requires showing ‘that counsel’s
representation fell below an objective standard of reasonableness,’ which standard is
measured by ‘professional norms’ prevailing at the time of the representation.” Garcia v.
State, 425 S.W.3d 248, 256-57 (Tenn. 2013) (quoting Strickland, 466 U.S. at 688). As
long as counsel’s representation was “‘within the range of competence demanded of
attorneys in criminal cases,’” counsel will not be deemed to have performed deficiently.
Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011) (quoting Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975)). Deficient performance requires a showing of errors so serious
that “‘counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment.’” Id. (quoting Strickland, 466 U.S. at 687).

        The reviewing court should not second-guess strategic choices or measure
counsel’s performance by “20-20 hindsight.” Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997). In reviewing counsel’s professional decisions, a “‘fair assessment …
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.’” Goad, 938 S.W.2d at 369 (quoting
Strickland, 466 U.S. at 689). The failure of a particular strategy does not establish
unreasonable representation. Cauthern v. State, 145 S.W.3d 571, 600 (Tenn. Crim. App.
2004). “Deference to counsel’s tactical choices, however, applies only if such choices
are within the range of competence required of attorneys in criminal cases.” Carpenter v.
State, 126 S.W.3d 879, 887 (Tenn. 2004).
                                           -6-
        In determining prejudice, the reviewing court must decide if there is “‘a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’” Calvert v. State, 342 S.W.3d 477, 486 (Tenn.
2011) (quoting Strickland, 466 U.S. at 694). In other words, “‘the question is whether
there is a reasonable probability that, absent the errors, the factfinder would have had a
reasonable doubt respecting guilt.’” Nesbit v. State, 452 S.W.3d 779, 787 (Tenn. 2014)
(quoting Strickland, 466 U.S. at 695). A reasonable probability is “‘a probability
sufficient to undermine confidence in the outcome.’” Calvert, 342 S.W.3d at 486
(quoting Strickland, 466 U.S. at 694).

                                       I. Guilty Plea

       The post-conviction court found that trial counsel’s advice to enter a guilty plea
was a reasonable strategic decision. The Petitioner argues that there could have been no
benefit to acknowledging guilt of the aggravated burglary when the offense included the
admission of elements which were inculpatory for the contested drug charge.

        We note that the Petitioner expressed a desire to enter a guilty plea in front of the
jury but the trial court made no findings regarding whether it would accept the guilty
plea. See State v. Hawkins, 519 S.W.3d 1, 40-41 (Tenn. 2017) (concluding that the trial
court did not err in refusing to accept the defendant’s guilty pleas during trial and that any
error was harmless because evidence of the crimes would have been admissible despite
the pleas); Goosby v. State, 917 S.W.2d 700, 707 (Tenn. Crim. App. 1995) (concluding
that the trial court abused its discretion in rejecting the petitioner’s guilty plea based on
its erroneous understanding that it could not sever the co-defendant’s case for trial);
Lawrence v. State, 455 S.W.2d 650, 651 (Tenn. Crim. App. 1970) (noting that “[t]he right
to plead not guilty has inherently and constitutionally within it the right to plead guilty”).
No plea colloquy was held, and judgment on the plea was not entered. See Blankenship
v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (noting that before a plea can be accepted,
there must be an affirmative showing that it is intelligent and voluntary). Instead, the
trial proceeded to opening statements and to the presentation of proof, and the trial court
tasked the jury with determining the Petitioner’s guilt on the aggravated burglary charge
after conferring with the Petitioner’s counsel, who requested the charge.

        In Boykin v. Alabama, the United States Supreme Court noted that beyond being
“itself a conviction” awaiting only judgment and determination of punishment, a guilty
plea is also “a confession which admits that the accused did various acts.” 395 U.S. 238,
242 (1969). The plea is a “‘voluntary confession’” and also “‘serves as a stipulation that
no proof by the prosecution need b[e] advanced.’” Id. at 242 n.4 (quoting Woodard v.
State, 171 So. 2d 462, 469 (Ala. Ct. App. 1965)). An acknowledgement of guilt is not the
“functional equivalent” of a guilty plea when the State is still tasked with proving the
                                            -7-
elements of the offense beyond a reasonable doubt. See Florida v. Nixon, 543 U.S. 175,
188 (2004) (concluding that counsel’s concession of guilt was not the functional
equivalent of a guilty plea because the State continued to bear the burden of proving the
offenses beyond a reasonable doubt and the defense was able to cross-examine witnesses
and attempt to exclude prejudicial evidence).

       While the Petitioner here told the jury that he pled guilty to the charge, he agreed
that the jury should be directed to determine whether each element of the offense had
been satisfied and whether the State had met its burden of proving the Petitioner’s guilt
beyond a reasonable doubt. The Petitioner’s statement during trial that he pled guilty to
the charge was made upon trial counsel’s advice, but because no judgment was entered
upon it, we do not apply the principles relevant to analyzing ineffective assistance of
counsel claims as they relate to a guilty plea. Nichols v. State, 90 S.W.3d 576, 587
(Tenn. 2002) (observing that in order to establish ineffective assistance of counsel in a
claim involving a guilty plea, a petitioner must establish that but for the deficiency, he
would have proceeded to trial rather than entering the guilty plea). Absent any sort of
plea colloquy, and considering the circumstance that the jury ultimately returned a verdict
on the charge, the Petitioner’s statement that he pled guilty essentially amounted to an in-
court confession made at the behest of his attorney. Accordingly, we examine whether
trial counsel’s advice to acknowledge guilt in front of the jury was deficient and
prejudicial.

        In making his confession, the Petitioner effectively admitted that he had entered a
habitation “with the intent to commit possession of a controlled substance containing
cocaine with intent to sell or deliver,” as charged in the indictment. See T.C.A. § 39-14-
402, -403. To convict the Petitioner of the drug charge, the State had to show that the
Petitioner knowingly possessed twenty-six grams or more of cocaine with the intent to
sell or deliver and that the offenses occurred within one thousand feet of school property.
See T.C.A. § 39-17-417(a)(4), (i), -432(b)(1). There was no dispute regarding the
amount of cocaine at issue or that the location of the apartment within one thousand feet
of a school. Accordingly, the only contested elements were whether the Petitioner
possessed the cocaine, whether he did so with the intent to sell or deliver it, and whether
he acted knowingly. By pleading guilty to the aggravated burglary, the Petitioner
acknowledged that he intended to possess cocaine with the intent to sell or deliver it,
essentially conceding that he acted with the requisite mens rea and that the cocaine was
destined for resale. The Petitioner’s confession of an intent to possess the cocaine in
order to sell or deliver it also had bearing on the jury’s determination of the sole
remaining question, whether he actually obtained possession. Trial counsel should have
been aware that he was conceding elements of the crime both because the elements were
contained in the indictment and because the issue had been drawn to his attention at the
previous mistrial. As post-conviction counsel noted, trial counsel could have argued that
                                           -8-
the Petitioner was trespassing on the property without advising the Petitioner to admit
that he intended to commit the felony of possession of cocaine. We conclude that trial
counsel’s advice to the Petitioner was deficient.

        In evaluating prejudice, we determine whether there is a reasonable probability
that, had the Petitioner not conceded that his presence in the apartment was accomplished
with the intent to commit possession of cocaine with intent to sell or deliver, the
fact-finder would have entertained reasonable doubt regarding his guilt on the possession
of cocaine charge. See Nesbit, 452 S.W.3d at 787. The State introduced evidence that
the Petitioner and co-defendant, after approaching a car in the parking lot, entered the
seemingly abandoned apartment through the window. The co-defendant was stopped
before he completed entry into the apartment and appeared to put something down, and
police found cocaine, a gun, and two sets of scales immediately inside the window. The
oven contained a larger quantity of cocaine, and plastic baggies were laid out on the
kitchen counter. The apartment was empty except for plastic chairs placed in front of the
two windows. Accordingly, the proof at trial established that the Petitioner entered an
apartment that appeared to function solely as a cocaine dispensary and that he did so in
the company of the co-defendant, who was carrying cocaine, a gun, and two sets of
scales. While the State’s proof in this case was certainly not overwhelming, we cannot
conclude that there was a reasonable probability that the jury would have acquitted the
Petitioner had he not conceded the elements of the aggravated burglary charge.

        We note that the prejudice inquiry in this case is somewhat complicated by the
testimony of both trial counsel and the Petitioner that the Petitioner, under a pseudonym,
was the rightful tenant of the drug house. We examine prejudice in light of the principles
laid down by Strickland, which directs us to examine whether the proceedings were such
as to “justify reliance on the outcome of the proceeding.” Strickland, 466 U.S. at 691-92.
In evaluating the correct standard by which to evaluate prejudice, Strickland examined
whether the result of a proceeding was “rendered unreliable, and hence the proceeding
itself unfair.” Id. at 694. The Strickland formulation defines prejudice in terms of
whether the errors were “sufficient to undermine confidence in the outcome.” Id.
“Absent some effect of challenged conduct on the reliability of the trial process, the Sixth
Amendment guarantee is generally not implicated.” United States v. Cronic, 466 U.S.
648, 658 (1984).         Although the Petitioner benefitted at trial from the State’s
serendipitous failure to discover that he had a possessory interest in the property, we
cannot say from the state of the record as it stands that the reliability of the proceedings is
called into question.

      We conclude that the Petitioner has not shown a reasonable probability that the
jury would have entertained reasonable doubt regarding his guilt on the drug charge had

                                             -9-
he not acknowledged guilt of the aggravated burglary charge. Accordingly, we deny
relief.

                                      II. Severance

       The Petitioner next claims he is entitled to a new trial because, in light of the
guilty plea, trial counsel should have moved for a severance of the offenses. The
Petitioner acknowledges that the offenses were subject to mandatory joinder under
Tennessee Rule of Criminal Procedure 8(a), but he argues that he was entitled to
severance under Tennessee Rule of Criminal Procedure 14(b)(2). See Tenn. R. Crim. P.
8(a)(1) (providing for mandatory joinder of offenses which are “based on the same
conduct or arise from the same criminal episode”); Tenn. R. Crim. P. 14(b)(2) (providing
for severance when “the court finds a severance appropriate to promote a fair
determination of the defendant’s guilt or innocence of each offense”).

       We note that the severance issue is, to some extent, intertwined with the claim that
counsel’s advice to plead guilty was deficient. The fact that the guilty plea was entered
before the jury was integral to counsel’s strategy of dissociating the Petitioner from the
drugs. Trial counsel intended the Petitioner to acknowledge to the jury that he was
entering a habitation without consent of the owner in order to distance him from the items
contained in the habitation. In entering the plea, the Petitioner was also admitting that he
was entering the habitation in order to possess the cocaine in the oven with the intent to
sell or deliver. While we have found trial counsel’s advice regarding the plea to be
deficient, the Petitioner has presented no evidence that the failure to move for a severance
of the guilty plea was deficient in itself. Pleading guilty to aggravated burglary in front
of the jury was part and parcel to the strategy of dissociating the Petitioner from the
apartment. We note here that the rules regarding severance anticipate issues arising from
the possibility of multiple trials, not separate pleas. Tenn. R. Crim. P. 8(a)(2) (“A
defendant shall not be subject to separate trials for multiple offenses falling within Rule
8(a)(1) ….” (Emphasis added)); Tenn. R. Crim. P. 14(b)(2) (“If two or more offenses are
joined or consolidated for trial…” (Emphasis added)).

       In any event, the Petitioner presented no evidence that the severance would have
been proper or would have been granted. When a claim of ineffective assistance of
counsel is premised on the failure to raise an issue, the reviewing court may address the
merits of the issue to assess prejudice. See Carpenter, 126 S.W.3d at 887-88. The post-
conviction court found that there would have been no basis for severance under Rule 14,
and the Petitioner has cited no case-law to show that a severance should have been
granted. See Jesse Wade Glover v. State, No. W2010-01679-CCA-R3-PC, 2012 WL
12932004, at *4 (Tenn. Crim. App. June 6, 2012) (denying relief for alleged deficiency in
failing to ask for severance when the petitioner did “not offer any evidence to support
                                           - 10 -
that a severance in this case would have been proper”); Black v. State, 794 S.W.2d 752,
758 (Tenn. Crim. App. 1990) (denying post-conviction relief for failure to file severance
when there existed “neither factual nor legal basis for the granting of a severance”).
Accordingly, the Petitioner is not entitled to relief on this issue.

                                     III. Suppression

        As an alternate theory, the Petitioner asserts that his trial counsel should have
acknowledged his possessory interest in the apartment, which would have given him
standing to move for suppression of the evidence. The State counters that the Petitioner
is not entitled to relief because such a motion would not have succeeded.

        In Vaughn v. State, defense counsel did not a file a motion to suppress because “it
would have directly contradicted [the petitioner’s] defense of mistaken identity.” 202
S.W.3d 106, 121 (Tenn. 2006). In particular, the petitioner would have had to admit that
he was in Alabama in order to assert standing for the motion. Id. The Tennessee
Supreme Court concluded that “[g]iven [the petitioner’s] insistence that he was never in
Alabama, counsel’s decision not to file a motion to suppress the guns was a legitimate
tactical decision.” Id. Tactical decisions, of course, are entitled to deference on post-
conviction review, and counsel’s strategic choices are not to be measured by 20-20
hindsight. Id.

       Here, as in Vaughn, in order to assert standing, the Petitioner would have had to
acknowledge an inculpatory fact: that he was the “Eric Davis” who had leased the
apartment. Trial counsel testified that the Petitioner did not want to admit that he was the
leaseholder because he wanted to disclaim any possessory interest in the drugs in the
oven. This is a reasonable tactical choice. Moreover, the Petitioner disclaimed
ownership of the apartment at the scene, the owner of the premises testified that he had
boarded up the door to exclude the leaseholder, and the apartment, which was void of
power, personal items, and furniture, appeared abandoned. We conclude that success in
the motion to suppress was, to put it mildly, unlikely. See State v. Talley, 307 S.W.3d
723, 731 (Tenn. 2010); State v. Ross, 49 S.W.3d 833, 842 (Tenn. 2001) (holding that “a
defendant’s disclaimer of an interest in the object of a government investigation will
result in a loss of the defendant’s subjective expectation of privacy in that object,
irrespective of other considerations such as actual ownership or possession”); see also
State v. Christina Lee Jones Thomas, No. E2013-01531-CCA-R3-CD, 2014 WL
3440687, at *6 (Tenn. Crim. App. July 14, 2014) (noting that “[t]he test for abandonment
is whether the lessee had a reasonable expectation of privacy in the property as of the
date of the search”); State v. John Holliday, No. C.C.A. No. 6, 1990 WL 98624, at *1
(Tenn. Crim. App. July 18, 1990) (concluding that a search was reasonable when the
defendant had abandoned the trailer by leaving and removing his property despite the fact
                                           - 11 -
that three days remained on the lease at the time of the search). Given the fact that
possession of the drugs could be attributed to the leaseholder, the decision not to assert
standing to contest the search was a reasonable strategic decision, and the motion to
suppress was unlikely to succeed. The Petitioner has demonstrated neither deficiency nor
prejudice.

                                      CONCLUSION

          Based on the foregoing reasoning, we affirm the post-conviction court’s denial of
relief.




                                                     ________________________________
                                                     JOHN EVERETT WILLIAMS, JUDGE




                                            - 12 -
