        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs June 18, 2013

          DONALD KEITH SOLOMON v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Coffee County
                       No. 38,141    L. Craig Johnson, Judge


               No. M2012-02320-CCA-R3-PC            Filed November 7, 2013


The petitioner, Donald Keith Solomon, pled guilty in 2009 to numerous charges and,
subsequently, sent a letter to the trial court, which apparently was treated as a petition for
post-conviction relief, alleging ineffective assistance of counsel. Appointed counsel then
filed an amended petition, setting out as claims for relief that trial counsel had failed to
advise the petitioner of his “legal innocence” of three of the charges for passing worthless
checks and that, contrary to his understanding at the plea submission, he was required to pay
court costs. Following an evidentiary hearing, the post-conviction court found that the
petitioner’s trial counsel had “thoroughly investigated and reviewed the evidence” with him
and “any decisions made about the timing of filing of motions were a strategic decision.”
We conclude that the record supports the opinion and order of the post-conviction court
denying the petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which N ORMA M CG EE O GLE and
D. K ELLY T HOMAS, J R., JJ., joined.

Kyle Mothershead, Nashville, Tennessee (on appeal); and Jeffrey D. Ridner, Manchester,
Tennessee (at hearing), for the appellant, Donald Keith Solomon.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Charles M. Layne, District Attorney General; and Kenneth J. Shelton, Jr., Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                          FACTS
       In its order, the post-conviction court set out the petitioner’s various convictions and
sentences which are the subject of this petition:

               In Case Number 37,203, the Petitioner was convicted on September 23,
       2009, of passing a worthless check over five hundred dollars ($500.00), a
       Class E felony, and four counts of passing a worthless check over one
       thousand dollars ($1,000.00), which are all Class D felonies. For the
       convictions in Case Number 37,203, the Court imposed a net effective
       sentence of eight (8) years, which was consecutive to any and all prior
       sentences. On the same day, the Petitioner was also convicted in Case Number
       37,200 of two (2) counts of theft of property under five hundred dollars
       ($500.00), which are Class A misdemeanors, and two (2) counts of theft of
       property over one thousand dollars ($1,000.00), each being a Class D felony.
       The Court imposed a net effective sentence of seven (7) years in that case,
       which was also consecutive to any and all prior sentences, and consecutive to
       the sentence in Case Number 37,203. In addition, on the same day, the
       Petitioner was convicted in Case Number 37,278 of theft of property over one
       thousand dollars ($1,000.00), which was a Class D felony. After the
       conviction in that case, the Court imposed a sentence of four (4) years, which
       was concurrent with the prior two cases. All of the convictions resulted in the
       net effective sentence of fifteen (15) years, which was consecutive to any and
       all other sentences. These convictions and sentences were the result of a guilty
       plea entered upon by the Petitioner upon the advice of his counsel.

       Testifying at the hearing on the petition for post-conviction relief were counsel who
represented the petitioner when he entered his pleas of guilty and the petitioner, himself. We
will review their testimony.

        Trial counsel for the petitioner testified that he had been appointed in the matter on
August 19, 2009, had talked “briefly” with the petitioner that day, and had begun to
investigate the matter that day. He had received two letters from the petitioner on August 24,
and, as we understand, one letter on August 27, September 4, September 11, September 17,
September 21, and September 28. Counsel had sent letters to the petitioner on August 24,
September 4, and September 11, 2009, and spoken with him by telephone on September 11.
Counsel said that, in his letter of August 24, he had enclosed copies of the applicable statutes,
the sentencing guidelines, and discovery documents from the State. Counsel explained that
the had advised the petitioner that the fact that certain of the checks were postdated could
raise a defense to those charges:




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               He had written me a number of times, and that was one of the subjects
       that usually came up was about whether or not postdating a check was a
       defense. In fact, in our correspondence he had with [an assistant public
       defender who represented him in general sessions court], she even talks about
       that and tells him that that might be a defense and even provided him with a
       case that he has used in the subsequent writings to explain that there was a
       possibility that might be a defense in these cases. I wrote him, too, about that,
       that the postdating of a check could possibly be a defense.

       Counsel also advised the petitioner regarding prosecution for postdated checks drawn
on a closed back account:

               I don’t know exactly what I talked to him about the closing accounts.
       See, he had indicated to me that the checks written on the closed account, that
       he closed the account after the checks were written, and I looked at the . . .
       worthless check statutes, and there were two or three questions I had in my
       mind, and one was actually what the proof would be at trial because I
       understand what is on the front of the checks, but I am not for sure what a
       witness was going to testify, that they were postdated on one day and then
       dated two days later, if that would actually be what the testimony would be.
       That was one of the questions I had in my mind, and two, I understand the case
       that the State has quoted and the defense as well that, well, if it is a postdated
       check, it may be a defense, but I couldn’t find any law that would say, “If you
       write a postdated check on a closed account or if you write a postdated check
       and then close the account, that that statute wouldn’t necessarily apply.” What
       I informed him was that if he was going to try these things that he shouldn’t
       file pretrial motions, that we should go ahead and set it for trial, and if we
       prevailed on the defense, let jeopardy attach, and then we could prevail on that
       defense. I told him that would probably only work one time if it worked at all
       because the State would simply get superseding indictments on theft by fraud
       or theft by deceit, and in the cases we provided him, that is exactly what the
       Court of Appeals or Tennessee Supreme Court said was a remedy to that
       particular problem.

       Counsel testified as to the advice his office furnished in a letter to the petitioner:

       “I also anticipate that even if we are successful in arguing that your postdated
       checks do not fall under the worthless check statute, the State will seek to
       either amend the charge of theft at the hearing or advise the complainants to
       obtain theft warrants.” As a tactical matter, if you file it pretrial and you are

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       successful, then you are leaving the State time to seek a superseding
       indictment. This is not necessarily an unusual thing that crops up in some of
       my trials. In his case, what makes it more difficult is that he had so many
       cases pending that even if we were able to successfully argue that in one of
       those cases – because I had written him and talked to him about severing of
       trials, which would be advantageous to him – that you could only do that one
       time, and then the State would simply seek a different strategy.

        Counsel did not recall whether the petitioner responded as to this analysis but
remembered that his “main emphasis . . . in his letters to [counsel] was trying to resolve all
of his cases to get a plea agreement that would resolve all of his cases. . . . [H]e wrote to
[counsel] that he would take . . . a 15- to 18-year sentence – consecutive to his parole
violation.” Counsel said he wrote to the petitioner, saying he “had not made any offers to the
State that his sentence would be consecutive to [those pending in] Bedford County.” He said
that, during the submission, the trial court said that, as for the State’s waiving the court costs,
this had not been done before and the court was “unaware of any legal authority to do that
as the time.” As for whether the waiving of court costs was part of the pleas of guilty,
counsel said, as we understand, he was not certain: “After we had an agreement, he wanted
the court costs waived, and whether he would have entered it or not without the waiving of
the court costs, I do not know.”

      At the post-conviction hearing, the petitioner explained his complaints against trial
counsel:

                My wife retained [trial counsel] for me, and she was the one that did
       most of the contacting and everything. He was getting real bad about missing
       appointments and returning phone calls, and then it got to the point where he
       was – I think there was two court cases here in Coffee County, I think three in
       Bedford, where he didn’t show up at all, and we kept going on and going on.
       I was at the Charles Bass Facility waiting to be transported for Bedford County
       and Coffee County, and I wrote a letter and asked him to, we just need to cut
       ties, and I would take my chances with another lawyer because I didn’t have
       . . . the judges in both jurisdictions were getting kind of pretty upset. I think
       the one in Bedford County said, “Hey, if he is not here next time, you are
       going to go ahead on your own.” I didn’t like that idea of doing that, so I did.
         I filed a complaint with the Tennessee Supreme Court, the consumer
       assistance program. He came to Charles Bass to see me, and he had packaged
       a deal together. He said, “You know, if I can get this deal, do you want to go
       ahead and do it, and then if I can’t, do you want me to go ahead and pull off
       the case?” I said, “Yes.” I remember I was in Nashville at Charles Bass, and

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       he said – I talked to him about the concurrent sentencing. He represented me
       in both jurisdictions. He said he would speak to [the prosecutor], and I can’t
       remember the District Attorney’s name in Bedford County, and we spoke
       about the checks then. He was kind of at that point fed up hearing about the
       checks. He said, you know, “I have explained this to you. I am beating a dead
       horse. We have got other things to look at with these theft things. Don’t
       worry about the checks.” Whatever the agreement he tried to get, the plea
       agreement fell through, so [the trial judge] actually allowed him to step down
       and get off the case and appointed me the Public Defender’s Office.

       The petitioner explained the situation on the day of his pleas of guilty, saying:

       I was still asking a lot of questions to the three and still wasn’t getting an
       answer about the checks and some of the theft issues, and I believe they were
       kind of getting upset, so they was like, “Well, it’s either you take it or you
       don’t. You take it or you don’t.” I was still . . . asking the questions about the
       court costs and the checks, and would this work or would it not.

       Further, he testified:

       I brought up the checks. I brought up the court costs. He said, you know, he
       had no objections to the court costs. I brought the checks up. I don’t
       remember ever getting a clear thing on the checks, but it was, you know,
       “These are a package deal. It’s take it or leave it, or if not, we’ll set them for
       trial.”

As for his claims regarding the court costs, he testified that, as of September 23, 2009, the
date of his guilty pleas, he did not know what was being done regarding the court costs.

                                         ANALYSIS

       As we have set out, the claims raised by the petitioner on appeal were that trial
counsel was ineffective because he did not advise the petitioner of his “legal innocence” of
three of the felony counts to which he pled guilty; that he failed to advise the petitioner the
State’s agreement to assume the court costs was “illusory”; that the State’s deducting court
costs from the petitioner’s inmate account violated the plea agreement; and that the plea
agreement, or part of it, should be set aside. The State denies the petitioner is entitled to
post-conviction relief, and the post-conviction court agreed.

       To establish a claim of ineffective assistance of counsel, the petitioner has the burden

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

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

466 U.S. at 687.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
Moreover, the reviewing court must indulge a strong presumption that the conduct of counsel
falls within the range of reasonable professional assistance, see Strickland, 466 U.S. at 690,
and may not second-guess the tactical and strategic choices made by trial counsel unless
those choices were uninformed because of inadequate preparation. See Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982). The prejudice prong of the test is satisfied by showing a
reasonable probability, i.e., a “probability sufficient to undermine confidence in the
outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694.

       Courts need not approach the Strickland test in a specific order or even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” 466 U.S.
at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either deficiency or
prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”).

        Following the hearing on the post-conviction petition, the court entered its opinion
and order denying the petition. In that order, the court found the petitioner had not shown
that trial counsel was ineffective:

              This Court has also reviewed [the trial judge’s] discussion with the
       Petitioner at the plea acceptance hearing, and it appears from the Petitioner’s

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       statements that he was fully aware of all the potential defenses in the case, and
       that he was fully aware that he was getting a far better deal than what he might
       have gotten if he had taken all of these cases to trial. [The trial judge] went
       over with the Petitioner exactly what would be required to find him guilty.
       [The petitioner] stated that his counsel had gone over the case, the burden of
       proof, and the defenses that might be available to him. The Petitioner
       stipulated to the facts that constituted the offenses and stated that he freely and
       voluntarily entered his plea of guilty on that day.

               The Court finds from all of the above that the Petitioner has failed to
       show that his appointed counsel’s representation fell below an objective
       standard of reasonableness. The Court also specifically finds that the Assistant
       Public Defender thoroughly conferred with the Petitioner about the evidence
       in this case and all defense strategies available. The Court also finds that the
       appointed counsel thoroughly investigated and reviewed the evidence with the
       Petitioner, and that any decisions made about the timing of filing of motions
       were a strategic decision. According to the above findings, the Court
       respectfully denies the Petitioner’s Petition for Post-Conviction Relief and
       dismisses same with prejudice.

       The post-conviction petitioner bears the burden of proving his allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2006). When an evidentiary
hearing is held in the post-conviction setting, the findings of fact made by the court are
conclusive on appeal unless the evidence preponderates against them. See Tidwell v. State,
922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely factual issues,
the appellate court should not reweigh or reevaluate the evidence. See Henley v. State, 960
S.W.2d 572, 578 (Tenn. 1997). However, review of a trial court’s application of the law to
the facts of the case is de novo, with no presumption of correctness. See Ruff v. State, 978
S.W.2d 95, 96 (Tenn. 1998). The issues of deficient performance of counsel and possible
prejudice to the defense are mixed questions of law and fact and, thus, subject to de novo
review by the appellate court. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

       On appeal, the petitioner relies upon the holding of our supreme court in State v.
Stooksberry, 872 S.W.2d 906, 908 (Tenn. 1994), that a postdated check cannot be the basis
for a worthless check prosecution, which quoted Cook v. State, 94 S.W.2d 386, 388 (Tenn.
1936), and that such a check “‘amounted to a promise that on the day it became due the
drawer would have in the bank a sufficient deposit to meet it.’” Stooksberry, 872 S.W.2d at
908. Thus, we agree with the petitioner’s argument that the fact the check was postdated
might have been an available defense in certain of the indictments against him. However,
his would have been a pyrrhic victory, for Stooksberry further held that “[a] post-dated

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check, as in the Cook case, may be used to commit offenses involving theft, deception, and
fraud.” Id. Thus, raising this defense would not have insulated the petitioner from criminal
liability but only have subjected him to a different set of charges than those he faced.

        Additionally, the petitioner asserts on appeal that “[t]he [S]tate agreed to assume the
burden of the court costs as part of the plea agreement, and then turned around after the fact
and broke the agreement by garnishing [his] inmate trust account.” The State responds that
the petitioner did not present any evidence at the hearing as to this claim. Further, the State
notes that, following the filing of this appeal, the petitioner was allowed by this court to
supplement the record by filing with the appellate record certain documents which purport
to be records supporting his claims in this regard. However, the State points out, and we
agree, that these records were not introduced as evidence or otherwise received by the post-
conviction court and, thus, may not be considered by this court on appeal. See Tenn. R. App.
P. 24(g). We note, additionally, that the relevance and meaning of these records are not
apparent. Accordingly, we concur with the State that this claim is without merit. Further,
the post-conviction court was not asked to consider this issue, so there is no ruling of that
court for us to review.

       The ruling of the post-conviction court is based upon the transcript of the submission
hearing and testimony at the post-conviction hearing, the court accrediting the testimony of
petitioner’s trial counsel rather than that of the petitioner. We have carefully reviewed the
record and conclude that it supports the findings of the post-conviction court. Accordingly,
we affirm the court’s denial of the petition for post-conviction relief.

                                      CONCLUSION

       Based upon the foregoing authorities and reasoning, we affirm the judgment of the
post-conviction court.


                                                   _________________________________
                                                   ALAN E. GLENN, JUDGE




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