        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                       Assigned on Briefs September 18, 2012

                   DAVID AVERY v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                    No. 2006-C-2451    Cheryl Blackburn, Judge


              No. M2011-02625-CCA-R3-PC - Filed December 17, 2012


The petitioner, David Avery, appeals the Davidson County Criminal Court’s denial of his
petition for post-conviction relief. The petitioner was convicted of aggravated robbery,
especially aggravated robbery, reckless endangerment, and attempted second degree murder
and was sentenced to an effective term of forty-nine years in the Department of Correction.
On appeal, he contends that he was denied his right to the effective assistance of counsel at
trial and on direct appeal. After reviewing the record, we must conclude that the petitioner
failed to establish his claim. Accordingly, the denial of relief is affirmed.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which R OBERT W.
W EDEMEYER and D. K ELLY T HOMAS, J R., JJ., joined.

Kara L. Everett, Mt. Juliet, Tennessee (on post-conviction); and David M. Hopkins,
Nashville, Tennessee (at trial and on appeal), for the appellant, David Avery.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
Victor S. Johnson, III, District Attorney General; and Rob McGuire, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION




                     Procedural History and Factual Background
        The facts underlying the petitioner’s multiple convictions arise from his involvement
in a home robbery, which included an attack on two victims. State v. David Anthony Avery
and Frederick Alexander Avery, No. M2008-01809-CCA-R3-CD (Tenn. Crim. App., at
Nashville, Dec. 10, 2009). We glean from the opinion filed in the direct appeal of this case
that the State’s proof, consisting of eyewitness testimony from the victims and the
petitioner’s sister, established that the petitioner joined with his brother in using box cutters
to attack the victims in their home in order to obtain drugs and money. Id. A complete
summarization of the extensive proof presented at trial is contained in the opinion, but
recitation here is not necessary for our determination of the issues presently before us.

       The petitioner was originally indicted, along with his co-defendant brother, for two
counts of especially aggravated robbery and two counts of attempted first degree murder.
Following the presentation of proof, the jury was charged. In that charge, the trial court
specifically defined “serious bodily injury” in relation to the especially aggravated robbery
counts. However, the court did not again specifically define “serious bodily injury” in the
instructions with regard to any lesser-included offenses, specifically aggravated assault.
Following deliberations, the jury convicted the defendant of aggravated robbery, especially
aggravated robbery, reckless endangerment, and attempted second degree murder. Following
a sentencing hearing, the petitioner was sentenced to an effective sentence of forty-nine years
in the Department of Correction. A direct appeal was filed with this court challenging the
sufficiency of the convicting evidence and the sentence imposed. This court affirmed both
the convictions and sentence on direct appeal. Id.

       Thereafter, the petitioner filed a timely pro se petition for post-conviction relief
alleging, among other grounds, that he was denied his right to the effective assistance of
counsel. Specifically, he complained that trial counsel had failed to challenge the trial
court’s omission of the definition of “serious bodily injury” from the jury instructions
regarding the lesser-included offenses. Following the appointment of counsel, an amended
petition was filed, adding a challenge to the petitioner’s representation on direct appeal.

        At the subsequent hearing, post-conviction counsel called the petitioner to the witness
stand to testify. However, the petitioner refused to be sworn in to testify and contended that
anyone, including the post-conviction court and counsel, who referred to him by the name
“David Avery” was violating the copyright protections he had placed on his name. Post-
conviction counsel explained to the court that she was prepared to represent the petitioner on
his post-conviction claims but that he had advised her immediately prior to the hearing that
he felt that proceeding with the hearing was not in his best interest. During this discussion,
the petitioner also announced that he wished to have no contact with the court “in no form,
shape, or fashion.”



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        In attempting to question and explain the post-conviction process to the petitioner, the
court was repeatedly interrupted by the petitioner, again claiming that to refer to him by name
was infringing on his common law copyrighted property rights. The petitioner went so far
as to state that every time the court used his name, it would be subject to a $500,000 fine.
The petitioner also stated that he had never been convicted of the instant crimes, stating
“[y]ou have convicted a juristic person by the all capitalized name.” The court persisted,
noting that “A person named David Avery, who looks exactly like you, who probably has the
same fingerprints you do, was convicted in this court.” The court then specifically informed
the petitioner that he had the right to file for post-conviction relief but informed him “[i]f
you do no present proof today, you’re giving up your right to contest your conviction.” The
court specifically stated that the petitioner had “an opportunity to talk about what [he]
[thought] went wrong at [his] trial,” to which the petitioner responded that the court had “an
opportunity to save [itself] and not go broke by using my common law copyrighted property.”
After acknowledging that he was refusing to participate in the hearing because it was his
position that he had never been convicted, the petitioner left the witness stand.

        Despite the fact that the petitioner refused to offer proof, post-conviction counsel felt
that she was ethically bound to call trial counsel to testify. Trial counsel indicated that he had
represented the petitioner both at trial on appeal. During the preparation for trial, he met with
the petitioner at least a dozen times. Trial counsel stated that he discussed the nature and
consequences of the four counts contained in the indictment, along with the elements of each
offense. However, trial counsel was unable to recall if he had reviewed a paper copy of the
jury instructions prior to their being read to the jury. He did indicate, however, that it was
the practice of this division to provide a paper copy prior to their being read aloud, although
he had no independent recall of that occurring in this case. Trial counsel also could not recall
whether “serious bodily injury” was defined one time or multiple times for the lesser-
included offenses. Trial counsel also testified that he perfected an appeal to this court, which
was denied.

       After taking the matter under advisement, the post-conviction court entered a written
order denying relief. This timely appeal followed.

                                            Analysis

        On appeal, the petitioner contends that the denial of his petition for post-conviction
relief was error. In order to obtain post-conviction relief, a petitioner must prove that his or
her conviction or sentence is void or voidable because of the abridgement of a right
guaranteed by the United States Constitution or the Tennessee Constitution. T.C.A. § 40-30-
103 (2010); Howell v. State, 151 S.W.3d 450, 460 (Tenn. 2004). A post-conviction petitioner
must prove allegations of fact by clear and convincing evidence. T.C.A. § 40-30-110(f);

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Tenn. Sup. Ct. R. 28, § 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009).
“Evidence is clear and convincing when there is no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.” Grindstaff v. State, 297 S.W.3d
208, 216 (Tenn. 2009) (quoting Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App.
1998)). In an appeal of a court’s decision resolving a petition for post-conviction relief, the
court’s findings of fact “will not be disturbed unless the evidence contained in the record
preponderates against them.” Frazier v. State, 303 S.W.3d 674, 679 (Tenn. 2010).
Moreover, witness credibility determinations rest within the sound discretion of the post-
conviction court. State v. Odom, 40 S.W.3d 450, 458 (Tenn. 2001).

        A criminal defendant has a right to “reasonably effective” assistance of counsel under
both the Sixth Amendment to the United States Constitution and Article I, Section 9, of the
Tennessee Constitution. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). The right to
effective assistance of counsel is inherent in these provisions. Strickland v. Washington, 466
U.S. 668, 685-86 (1984); Dellinger, 279 S.W.3d at 293. To prove ineffective assistance of
counsel, a petitioner must prove both deficient performance and prejudice to the defense.
Strickland, 466 U.S. at 687-88. Failure to satisfy either prong results in the denial of relief.
Id. at 697.

        A claim of ineffective assistance of counsel raises a mixed question of law and fact.
Burns, 6 S.W.3d at 461; Grindstaff, 297 S.W.3d at 216. Consequently, this court reviews the
trial court’s factual findings de novo with a presumption of correctness, unless the evidence
preponderates against the trial court’s factual findings. Grindstaff, 297 S.W.3d at 216. But
the trial court’s conclusions of law on the claim are reviewed under a purely de novo
standard with no presumption of correctness. Fields v. State, 40 S.W.3d 450, 458 (Tenn.
2001).

       In denying relief, the post-conviction court specifically found:

              Petitioner raised multiple claims in both his pro se and amended
       petitions; however since Petitioner refused to testify at his evidentiary hearing,
       no proof supporting his claims was placed in the record by himself or any other
       witness. As such, Petitioner failed to meet his burden of proving by clear and
       convincing evidence standard his ineffective assistance of counsel and other
       claims. . . . Petitioner essentially waived his right to a post-conviction hearing.

              ....

              Additionally, the Court notes that the primary claim advanced during
       the post-conviction proceeding is that the Court omitted the essential element

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       of “serious bodily injury” from the definition of the lesser included offense of
       aggravated assault, the offense Petitioner asserts would have been the proper
       conviction. Even assuming Petitioner’s argument has merit, here, the jury
       convicted Petitioner of the lesser included offense aggravated robbery in Count
       1 and the indicted charge of especially aggravated robbery on Count 2. Thus,
       before the jury would have even considered the offense of aggravated assault,
       the jury must have found Petitioner not guilty of all the higher offenses set
       forth on the verdict form; that is, especially aggravated robbery, facilitation of
       especially aggravated robbery, attempted especially aggravated robbery,
       aggravated robbery, facilitation of aggravated robbery, attempted aggravated
       robbery, facilitation of attempted aggravated robbery, robbery, facilitation of
       robbery, attempted robbery, facilitation of attempted robbery. Here, the jury
       did not deliberate past the lesser included offense of aggravated robbery. Even
       if the Court inadvertently omitted the element of “serious bodily injury” and
       trial counsel failed to object, Petitioner has not suffered any prejudice. As the
       State pointed out at the evidentiary hearing, given the totality of the case, there
       was no question that a weapon was used and people were placed in fear.

       On appeal, the petitioner contends that the post-conviction court erred in finding that
he had waived his right to a post-conviction hearing by his refusal to testify. He asserts that,
while he did not answer direct questions, “the[re] is no indication in the record that he
knowingly waived his right to post-conviction relief as he never said specifically that he did
not want to proceed with his claim.” The petitioner further contends that post-conviction
counsel was able to illicit testimony from trial counsel which established his claim of
deficient performance. He contends that trial counsel’s failure to remember whether he
reviewed the instructions prior to them being read to the jury “is a gross deviation in the
standard of legal representation and the deviation from that standard has prejudiced [the
petitioner.]" We disagree.

       The Post-Conviction Procedure Act outlines the procedure for establishing a claim of
ineffective assistance of counsel, specifically stating that “[a] ground for relief is waived if
the petitioner personally or through an attorney failed to present it for determination in any
proceeding before a court of competent jurisdiction in which the ground could have been
presented.” T.C.A. § 40-30-106(g). Essentially, the purpose of the evidentiary hearing is for
the petitioner to present evidence under the Strickland standard as to whether there was a
deficiency in representation and whether prejudice resulted therefrom. “All that due process
requires in the post-conviction setting is that the defendant have ‘the opportunity to be heard
at a meaningful time and in a meaningful manner.’” Stokes v. State, 146 S.W.3d 56, 61
(Tenn. 2004) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). Our supreme court
had held that if a petitioner is “given the opportunity to present proof and argument on the

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petition for post-conviction relief,” he has received a full and fair hearing. House v. State,
911 S.W.2d 705, 712 (Tenn. 1995).

        In this case, it seems apparent that the petitioner was in fact afforded an opportunity
to be heard at the evidentiary hearing. See David M. Olvera, No. M2009-00039-CCA-R3-PC
(Tenn. Crim. App., at Nashville, Dec. 22, 2010). The petitioner in this case chose not to avail
himself of that opportunity despite repeated warnings from the court about the resulting
consequences of such actions. Instead of exercising his constitutionally given rights to
introduce evidence regarding trial counsel’s performance, the petitioner chose to put forth
frivolous claims of copyright infringement. By doing so, he effectively waived his right to
a post-conviction proceeding. We can reach no other conclusion on this record other than
that the petitioner knowingly waived this right by his own actions and refusals.

        While we agree that post-conviction counsel did attempt to put on some form of
evidence with the testimony of trial counsel, it was simply not enough to carry the burden in
this case. Trial counsel’s testimony was that he was unable to recall whether he had
specifically reviewed the jury charge prior to it being read or what mention was made of
“serious bodily injury.” Contrary to the petitioner’s contention on appeal, failure to recall
is not equivalent to a gross deviation from the standard of effective legal representation.
Moreover, as pointed out by the State, even if trial counsel had failed to review or object to
this lack of multiple inclusion of the definition of “serious bodily injury,” our supreme court
has found no error in not repeating definitions with each lesser offense, because the law
requires only that the jury be fairly charged with the law. See State v. Cravens, 764 S.W.2d
754, 756 (Tenn. 1989); State v. Jones, No. M2003-01942-CCA-R3-CD (Tenn. Crim. App.,
at Nashville, Mar. 18, 2005). This precludes a finding of prejudice, which negates the
petitioner’s ineffective assistance of counsel claim. No relief is warranted.

                                      CONCLUSION

       Based upon the foregoing, the denial of post-conviction relief is affirmed.




                                                    _________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




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