                                                                                     08/31/2017
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                         Assigned on Briefs August 1, 2017

               KENNETH TUCKER v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Shelby County
                 No. 14-04391       J. Robert Carter, Jr., Judge
                    ___________________________________

                          No. W2016-01967-CCA-R3-PC
                      ___________________________________


Petitioner, Kenneth Tucker, appeals the post-conviction court’s dismissal of his post-
conviction petition alleging ineffective assistance of counsel. After a review, we
determine Petitioner has failed to establish that he received ineffective assistance of
counsel. Accordingly, the judgment of the post-conviction court is affirmed.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and ROBERT W. WEDEMEYER, JJ., joined.

Shannon M. Davis, Memphis, Tennessee, for the appellant, Kenneth Tucker.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Amy P. Weirich, District Attorney General; and Leslie Fouche, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                      OPINION

                                 Factual Background

       In July of 2014, Petitioner and Allen Neasby were indicted for one count of
aggravated robbery, one count of aggravated burglary, and one count of employing a
firearm during the commission of a dangerous felony. Both Petitioner and Mr. Neasby
entered guilty pleas to one count of aggravated robbery and one count of aggravated
burglary. Count Three of the indictment, employing a firearm during the commission of
a dangerous felony, was dismissed.1 In exchange for the entry of the guilty pleas in
Counts One and Two, Petitioner received an effective sentence of eight years to be served
at 85%.

        At the guilty plea hearing, the factual basis for the plea was established by the
State. Both Petitioner and Mr. Neasby stipulated that they entered the female victim’s
home at night, pointed a gun at the victim, and demanded money. When the victim
refused, she was struck in the face with the handgun, breaking her cheekbone. The
victim eventually gave in to the demands by handing over the cash from her purse. The
men ransacked portions of her home before running from the scene. Mr. Neasby was
identified as a suspect, and the victim confirmed his identity after picking him out of a
photographic lineup. Mr. Neasby confessed and named Petitioner as his accomplice.
The victim was also able to identify Petitioner.

       Petitioner filed a timely pro se petition for post-conviction relief. In the petition,
he claimed that the guilty plea was unknowing and involuntary, his confession was
coerced, the conviction was based on evidence obtained pursuant to an unlawful arrest,
the conviction was based on the unconstitutional failure of the prosecution to disclose
evidence favorable to the defense, and he received ineffective assistance of counsel.
Counsel was appointed, and an amended petition was filed. In the amended petition,
Petitioner alleged the following with regard to ineffective assistance of counsel: (1)
counsel failed to properly investigate the case and interview witnesses; (2) counsel did
not provide discovery to Petitioner; (3) counsel failed to “do her due diligence in
defending the [Petitioner]”; and (4) counsel failed to challenge the arrest as
unconstitutional. Petitioner also alleged prosecutorial misconduct during the preliminary
hearing.

       At the hearing on the petition for post-conviction relief, Petitioner admitted that he
entered guilty pleas to aggravated robbery and aggravated burglary in exchange for a
sentence of eight years. However, he claimed trial counsel was “defiant from the
beginning,” withholding the discovery materials from Petitioner. Petitioner claimed that
he was unaware Mr. Neasby had signed a confession. Petitioner maintained his
innocence, claiming that he “gave [trial counsel] witnesses and alibis that she needed to
subpoena to court, that she needed to even contact,” and trial counsel failed to do so.
Petitioner maintained that trial counsel’s failure to investigate, secure witnesses, and
provide discovery put him in “duress.” Petitioner explained that trial counsel told him

       1
         The record does not include a judgment form for Count Three of the indictment. Instead, the
“Special Conditions” box on Counts One and Two states: “Count 3 NP/NC.” On remand to the post-
conviction court, the court should ascertain whether a judgment form exists for Count Three of the
indictment. If no such judgment form exists, one should be entered reflecting the disposition of Count
Three. See State v. Davidson, 509 S.W.3d 156, 217 (Tenn. 2016) (requiring a trial court to prepare a
uniform judgment document for each count of the indictment).
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this plea offer was the “best” deal he could get and that he had “to sign for this eight-year
sentence for something [he] didn’t do.” Petitioner claimed trial counsel told him if he
successfully completed a year of incarceration he could get “special parole.” Petitioner
testified that this promise of “special parole” led him to sign the plea agreement.

       Petitioner admitted on cross-examination that trial counsel gave him the address
for a website on which he could read his discovery materials. Petitioner claimed that he
attempted to access the materials on his telephone but was unable to do so because he did
not have a computer. Petitioner “tried to send a message” to trial counsel through the
website in which he requested a paper copy of discovery. Petitioner did not think that the
message went through. Petitioner did successfully send a message to trial counsel to
“call him” via the website but claimed that he “never even got any replies from the
message that [he] sent [her] on the website.”

        Petitioner admitted that he discussed the plea with trial counsel, his fiancée, and
his father but claimed that he did not recall hearing the prosecutor read the plea aloud.
Petitioner thought that he would be eligible for “special parole” in one year and claimed
that he “wouldn’t have signed the guilty plea” if he knew that parole was not possible.
Petitioner explained that by “special parole,” he meant that he would petition the trial
court to suspend the remainder of his sentence. Petitioner was afraid that his bond would
be revoked and he would miss the birth of his child if he did not plead guilty and instead
went to trial. However, Petitioner also admitted that he understood that he was pleading
guilty to an eight-year sentence.

       Trial counsel testified that she was retained to represent Petitioner. She recalled
giving Petitioner access to the discovery materials on a website called “My Case.”
Petitioner logged in to the website and “could access it at any time 24 hours a day.”
Petitioner used the website to communicate with trial counsel. Trial counsel insisted that
Petitioner “never” gave her the name of an alibi witness.

        Trial counsel testified that Petitioner was originally charged with especially
aggravated robbery and especially aggravated burglary, but when the case was indicted,
the “especially” designation was dropped. Trial counsel entered into negotiations with
the State, who initially offered “nine years and eight years concurrent,” and if Petitioner
“did not want the offer, then [the State] would seek a superseding indictment back to the .
. . especially aggravated robbery and especially aggravated burglary.”

       Chandra Black, Petitioner’s fiancée, testified at the hearing. She did not recall
seeing discovery materials. In fact, she testified that she called trial counsel’s office on at
least one occasion but never received a return call. She testified that trial counsel did not
give Petitioner any other options but pleading guilty. She was unaware of any alibi
witnesses.
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       The post-conviction court took the matter under advisement. In an order entered
on August 8, 2016, the post-conviction court denied relief. Specifically, the post-
conviction court determined that Petitioner did not prove his allegation that trial counsel
“failed to investigate his witnesses,” in part because “he present[ed] no witnesses for
th[e] court to demonstrate what counsel failed to uncover.” Additionally, the post-
conviction court determined that the record supports the testimony of trial counsel that
there was discussion about the ramifications of the guilty plea prior to its entry. The
post-conviction court found this was supported by the plea colloquy and determined that
Petitioner entered a “free and voluntary guilty plea that was knowingly and intelligently
entered.” The post-conviction court did not accredit Petitioner’s testimony with regard to
the “secret ‘special parole’ agreement.” In short, the post-conviction court determined
Petitioner failed to meet his burden.

       Petitioner filed a timely notice of appeal.

                                          Analysis

                                   A. Standard of Review

        Post-conviction relief is available for any conviction or sentence that is “void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. In order to
prevail in a claim for post-conviction relief, a petitioner must prove his factual allegations
by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d
152, 156 (Tenn. 1999). On appeal, this Court will review the post-conviction court’s
findings of fact “under a de novo standard, accompanied with a presumption that those
findings are correct unless the preponderance of the evidence is otherwise.” Fields v.
State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 13(d); Henley v. State,
960 S.W.2d 572, 578 (Tenn. 1997)). This Court will not re-weigh or re-evaluate the
evidence presented or substitute our own inferences for those drawn by the trial court.
Henley, 960 S.W.2d at 579. Questions concerning witness credibility, the weight and
value to be given to testimony, and the factual issues raised by the evidence are to be
resolved by the post-conviction court. Momon, 18 S.W.3d at 156 (citing Henley, 960
S.W.2d at 578). However, the post-conviction court’s conclusions of law and application
of the law to the facts are reviewed under a purely de novo standard, with no presumption
of correctness. Fields, 40 S.W.3d at 458.

                            B. Ineffective Assistance of Counsel

       Both the Sixth Amendment to the Constitution of the United States and Article I,
section 9 of the Tennessee Constitution guarantee the right of an accused to the effective
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assistance of counsel. In order to sustain a claim of ineffective assistance of counsel, a
petitioner must demonstrate that counsel’s representation fell below the range of
competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1975). Under the two prong test established by Strickland v. Washington, 466
U.S. 668, 687 (1984), a petitioner must prove that counsel’s performance was deficient
and that the deficiency prejudiced the defense. See Burnett v. State, 92 S.W.3d 403, 408
(Tenn. 2002). Because a petitioner must establish both elements in order to prevail on a
claim of ineffective assistance of counsel, “failure to prove either deficient performance
or resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley,
960 S.W.2d at 580. “Indeed, a court need not address the components in any particular
order or even address both if the [petitioner] makes an insufficient showing of one
component.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466
U.S. at 697).

       The test for deficient performance is whether counsel’s acts or omissions fell
below an objective standard of reasonableness under prevailing professional norms.
Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must evaluate the
questionable conduct from the attorney’s perspective at the time, Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and “should indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance,” State v. Burns,
6 S.W.3d 453, 462 (Tenn. 1999). This Court will not use hindsight to second-guess a
reasonable trial strategy, Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994),
even if a different procedure or strategy might have produced a different result, Williams
v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). However, this deference to
the tactical decisions of trial counsel is dependent upon a showing that the decisions were
made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.
App. 1992).

        Even if a petitioner shows that counsel’s representation was deficient, the
petitioner must also satisfy the prejudice prong of the Strickland test in order to obtain
relief. The question is “whether counsel’s deficient performance renders the result of the
trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S.
364, 372 (1993). A petitioner must show that there is a reasonable probability “sufficient
to undermine confidence in the outcome” that, “but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Burns, 6 S.W.3d at 463 (quoting
Strickland, 466 U.S. at 694). In the context of a guilty plea, a petitioner “must show that
there is a reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59
(1985).

      Petitioner claims on appeal that trial counsel failed to “explain the case and the
witnesses against him,” evidenced by her failure to thoroughly investigate alibi witnesses.
                                           -5-
Trial counsel testified at the hearing that she gave Petitioner access to his discovery
materials through her website “My Case” and that Petitioner was able to communicate
with her through the website by sending her messages. Trial counsel did not recall
Petitioner’s giving her the name of any alibi witnesses. The post-conviction court
assessed the evidence before it and found the record appeared to demonstrate that trial
counsel did in fact discuss with Petitioner the facts of this case. The trial court quite
obviously believed trial counsel’s testimony over Petitioner’s. The evidence does not
preponderate against this finding. Moreover, Petitioner bears the burden of producing the
alibi witness that he claims trial counsel was ineffective for failing to present to the trial
court. See Black v. State, 794 S.W.2d 752, 757-58 (Tenn. Crim. App. 1990). Petitioner
failed to do so and, thus, failed to prove either that trial counsel’s performance was
deficient or that he suffered any prejudice.

       Petitioner also claims the post-conviction court erred by determining that trial
counsel did not promise Petitioner “special parole.” The evidence on this claim does not
preponderate against the determinations of the post-conviction court. Petitioner admitted
that he was present during the plea colloquy and agreed that he understood his sentence.
The post-conviction court specifically accredited the testimony of trial counsel in this
regard. Petitioner is not entitled to relief on this issue.

                                         Conclusion

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


                                           ____________________________________
                                           TIMOTHY L. EASTER, JUDGE




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