IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned On Briefs June 28, 2011
MATTHEW SWEET v. STATE OF TENNESSEE
Appeal from the Criminal Court for Greene County
No. 08CR295 John F. Dugger, Jr., Judge
No. E2010-01502-CCA-R3-PC - Filed August 19, 2011
Petitioner, Matthew Lee Sweet, was convicted by a Greene County jury of two counts of
aggravated child abuse. State v. Matthew Lee Sweet, No. E2007-00202-CCA-R3-PC, 2008
WL 1723431, at *1 (Tenn. Crim. App., at Knoxville, Apr. 15, 2008). He received an
effective sentence of twenty-five years. Id. Petitioner’s convictions were affirmed in a
delayed appeal. Id. Subsequently, Petitioner sought post-conviction relief on the basis of
ineffective assistance of counsel. After a hearing on the petition, the post-conviction court
denied post-conviction relief and dismissed the petition. After a thorough review, we
determine that Petitioner has failed to show clear and convincing evidence that he is entitled
to post-conviction relief. Accordingly, the judgment of the post-conviction court is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.
J ERRY L. S MITH, J., delivered the opinion of the court, in which J OHN E VERETT W ILLIAMS and
D. K ELLY T HOMAS, J R., JJ., joined.
Troy L. Bowlin, II, Morristown, Tennessee, for the appellant, Matthew Sweet.
Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; C. Berkeley Bell, District Attorney General; and Tara B. Trent, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual Background
Petitioner was charged by presentment of the Greene County Grand Jury with two
counts of aggravated child abuse. Id. The counts alleged that Petitioner committed
“aggravated child abuse of a child six years of age or less,” on two separate occasions.
During one occasion, the victim “suffered an orbital fracture and rib fractures and an arm
fracture and a leg fracture.” On the second occasion, the victim “suffered a fracture of the
upper left forearm and nothing else.” Id. Medical testimony indicated that the injuries were
non-accidental. Id. at *4.
The proof at trial revealed that Petitioner’s six-week-old son was brought into the
hospital with marks on his rib cage and legs. Id. at *1. Petitioner, his mother, and the
victim’s mother were all interviewed at the hospital. Petitioner initially claimed that he
dropped the victim in his car seat and shook the victim. Id. In a later interview, Petitioner
admitted that he was responsible for the victim’s injuries. According to Petitioner:
[Petitioner] and [the victim’s mother] were watching television when the
victim began crying. [Petitioner] stated that he picked up the victim from the
swing in which he was sitting and threw him into the air several times.
[Petitioner] said that he nearly missed catching the victim and had to grab one
of his legs. [Petitioner] conceded that he should have stopped at that point, but
he threw the victim into the air once more. [Petitioner] did not catch the
victim, and the victim fell into the swing and “cartwheeled.” [Petitioner] said
that the victim’s head struck the lower bar, and his side hit an upper bar.
[Petitioner] also said that he had dropped the victim a couple of weeks prior
to this incident.
Id. at *5. The examination at the hospital “revealed the victim had four rib fractures on his
right side and a ‘significant’ bruise on his lung in the area of the rib fractures.” Id. at *2.
The victim also had injuries to his liver, rib cage, lung, and the orbit behind his right eye as
well as breathing problems. Id. at *2. The victim’s injuries were described as “very severe.”
Id.
Several witnesses testified that Petitioner was alone with the victim in close proximity
to the hospital visit. During the instances, the victim was crying and the victim suddenly
stopped crying. Id. at *3. During an interview, Petitioner admitted:
[T]he victim had been “screaming bloody murder for like three or four days.”
[Petitioner] said he picked up the victim. The victim was breathing, but his
ribs “were making a popping noise.” [Petitioner] thought something was
wrong with the victim. [Petitioner] rubbed the victim’s back and legs, and the
victim screamed louder. [Petitioner] saw bruises on the victim’s legs.
Id. Petitioner denied hurting the victim but mentioned that he:
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[D]ropped him about three weeks ago when I was walking to go to the garden
and tripped. I grabbed his leg as he was falling down. I may have grabbed
him by the legs from some near misses when throwing him up. There’s been
a couple of times I’ve grabbed him by the legs to pull him back and change his
diaper and I noticed the bruises in a couple of days.
Id. at *4. Petitioner presented the testimony of the victim’s mother and his own mother. Id.
at *6. After hearing the evidence, the jury found Petitioner guilty of two counts of
aggravated child abuse. Id. at *7. The trial court imposed a twenty-five-year sentence for
each count, to be served concurrently. Trial counsel did not file a notice of appeal or seek
to withdraw from representation. Id. Petitioner filed for post-conviction relief, seeking a
delayed appeal based upon counsel’s failure to pursue an appeal or withdraw. Petitioner was
granted a delayed appeal. Id.
On direct appeal, this Court affirmed the convictions and sentence. Id. at *11.
Subsequently, Petitioner sought post-conviction relief. At a post-conviction hearing,
Petitioner testified that when the charges were brought against him he was appointed an
attorney. He met with this attorney two or three times for about forty-five minutes. His
family then retained an attorney. This attorney represented Petitioner at trial. Petitioner
recalled meeting with trial counsel three times prior to trial. Each meeting lasted about thirty
to forty-five minutes. Petitioner claimed that he never saw any discovery materials prior to
trial but remembered discussing what they “were going to do at trial” and the State’s
evidence. Petitioner did not remember if trial counsel had interviewed any of the witnesses
prior to trial and insisted that he was sentenced immediately after the trial concluded.
On cross-examination, Petitioner admitted that trial counsel also represented him in
the juvenile court proceedings that arose out of the same factual scenario as the criminal
charges. During the juvenile proceedings, some of the witnesses that testified later testified
at the criminal trial.
Petitioner recalled giving several statements to police but claimed that trial counsel
did not file a motion to suppress the statements prior to trial. Petitioner testified that he took
a polygraph test prior to giving one of the statements to police. Petitioner also testified that
he and trial counsel discussed the fact that Petitioner would not testify at trial.
The attorney that was initially appointed to represent Petitioner testified at the hearing.
He recalled that he filed a motion for discovery on Petitioner’s behalf. He received the
discovery and discussed it with Petitioner. His representation ended shortly thereafter when
Petitioner retained trial counsel.
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Trial counsel testified at the hearing that he was retained by Petitioner’s mother for
a flat fee. Trial counsel had previously been appointed to represent Petitioner in the juvenile
court proceedings with regard to the dependency and neglect case. Trial counsel received
and reviewed the discovery from the Public Defender’s Office and went over the papers with
Petitioner at the jail. Trial counsel recalled meeting with Petitioner at least a “dozen” times
after he delivered the discovery. Trial counsel and Petitioner talked “weekly.”
Trial counsel took several depositions in conjunction with the juvenile case and gave
Petitioner the option to attend the depositions. Petitioner chose not to attend despite trial
counsel’s claim that it was “important” for Petitioner to be present. Petitioner was presented
with copies of the transcribed depositions.
Trial counsel testified that he interviewed all of the witnesses in the case with the
exception of one. Trial counsel did not seek independent review of the medical records
because he felt that the medical evidence was performed by neutral “third parties” prior to
the State’s involvement in the case. Additionally, trial counsel had previously worked with
several of the medical professionals who were involved in the case.
Trial counsel did not file a motion to suppress Petitioner’s statements prior to trial
because he felt there was no legal basis for filing the motion. Trial counsel remembered that
Petitioner had signed Miranda waivers prior to giving the statements. Trial counsel claimed,
however, that Petitioner had not informed him about a polygraph test.
Trial counsel explained that his trial strategy was to convince the jury that Petitioner
did not commit the crime. Trial counsel was concerned about the inconsistent statements
given by Petitioner prior to trial and the fact that they were contrary to the doctor’s expected
testimony of how the injuries could have occurred. Trial counsel even attempted to settle the
case prior to trial, but Petitioner ultimately chose to go ahead with the trial.
At the conclusion of the hearing, the post-conviction court took the matter under
advisement. In an order issued at a later date, the post-conviction court determined that of
the “twenty-seven different reasons as to how [trial counsel] was ineffective, . . . [m]any of
[trial counsel’s] decisions were tactical and were based on his adequate preparation.” In
other words, trial counsel did not render ineffective assistance of counsel.
Petitioner filed a timely notice of appeal.
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Analysis
Post-Conviction Standard of Review
The post-conviction court’s findings of fact are conclusive on appeal unless the
evidence preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).
During our review of the issues raised, we will afford those findings of fact the weight of a
jury verdict, and this Court is bound by the post-conviction court’s findings unless the
evidence in the record preponderates against those findings. See Henley v. State, 960 S.W.2d
572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997). This
Court may not reweigh or re-evaluate the evidence, nor substitute its inferences for those
drawn by the post-conviction court. See State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn.
2001). However, the post-conviction court’s conclusions of law are reviewed under a purely
de novo standard with no presumption of correctness. See Shields v. State, 40 S.W.3d 450,
458 (Tenn. 2001).
Ineffective Assistance of Counsel
When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, the petitioner bears the burden of showing that (a) the services rendered by trial
counsel were deficient and (b) that the deficient performance was prejudicial. See Powers
v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient
performance, the petitioner must show that the services rendered or the advice given was
below “the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn. 1975). In order to demonstrate prejudice, the petitioner must
show that there is a reasonable probability that, but for counsel’s deficient performance, the
result of the proceeding would have been different. See Strickland v. Washington, 466 U.S.
668, 694 (1984). “Because a petitioner must establish both prongs of the test 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 v. State,
960 S.W.2d 572, 580 (Tenn. 1997).
As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record
preponderates against the court’s findings. See id. at 578. However, our supreme court has
“determined that issues of deficient performance by counsel and possible prejudice to the
defense are mixed questions of law and fact . . . ; thus, [appellate] review of [these issues]
is de novo” with no presumption of correctness. Burns, 6 S.W.3d at 461.
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Furthermore, on claims of ineffective assistance of counsel, the petitioner is not
entitled to the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. 1994).
This Court may not second-guess a reasonably-based trial strategy, and we cannot grant relief
based on a sound, but unsuccessful, tactical decision made during the course of the
proceedings. See id. However, such deference to the tactical decisions of counsel applies
only if counsel makes those decisions after adequate preparation for the case. See Cooper
v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
On appeal, Petitioner complains that the post-conviction court improperly denied his
petition for post-conviction relief. Specifically, Petitioner argues that he received ineffective
assistance of counsel because counsel: (1) failed to file any pretrial motions, specifically a
motion for bill of particulars and a motion to suppress; (2) failed to obtain an independent
medical expert; (3) failed to meet with Petitioner on a regular basis; (4) failed to request a
sentencing hearing; and (5) failed to ensure Petitioner’s presence at the depositions.
The record supports the conclusions of the post-conviction court. With regard to
pretrial motions, the record shows that trial counsel considered filing a motion to suppress
but that the motion was unwarranted based on the adequacy of the Miranda waivers that were
in the discovery documents provided by the State. The post-conviction court found the
testimony of trial counsel to be “more credible than Petitioner.” The post-conviction court
determined that the decision to forgo a motion to suppress was a tactical decision made by
trial counsel after preparation for the case. Again, we will not second-guess a
reasonably-based trial strategy that is made after adequate preparation for the case. Adkins,
911 S.W.2d at 347; Cooper, 847 S.W.2d at 528. Further, Petitioner has failed to show that
the motion to suppress would have been granted or that there is a reasonable probability that
the proceedings would have concluded differently had counsel performed the suggested task.
Vaughn v. State, 202 S.W.3d 106, 120 (Tenn. 2006) (citing Strickland, 466 U.S. at 687). The
evidence does not preponderate against the determination of the post-conviction court.
Likewise, the evidence does not preponderate against the post-conviction court’s
determination that Petitioner failed to prove trial counsel was ineffective for failing to obtain
a medical expert. The proof at the hearing indicated trial counsel interviewed and deposed
several of the State’s doctors prior to trial. According to trial counsel, he had worked with
these doctors before on other cases and felt that they were impartial third parties because they
were involved in the case prior to the State. Petitioner did not present witnesses at the
hearing that would have established evidence contrary to that of the medical testimony
introduced at trial. Petitioner must present witnesses at the post-conviction hearing to prevail
on a claim of deficient representation for failing to call a witness at trial. Black v. State, 794
S.W.2d 752, 757 (Tenn. Crim. App. 1990). A post-conviction court may not speculate, “on
the question of . . . what a witness’s testimony might have been if introduced at trial.” Id.
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Petitioner next claims that trial counsel failed to meet with him regularly and keep him
apprised of the status of his case.1 The record does not support this claim. In other words,
the evidence does not preponderate against the post-conviction court’s determination that
trial counsel rendered effective assistance of counsel. The evidence indicated that trial
counsel met with Petitioner at least a “dozen” times after delivering discovery to him at jail.
These meetings were in addition to any meetings the two may have had regarding the
juvenile court proceedings. Trial counsel also mentioned that he and Petitioner spoke
“weekly.” As stated above, the post-conviction court accredited trial counsel’s testimony.
Petitioner is not entitled to relief on this issue.
Petitioner alleged that trial counsel was ineffective for failing to request a sentencing
hearing. The transcript of the trial indicates that Petitioner was afforded a sentencing hearing
immediately after the verdict was rendered by the jury and that the trial court had a
presentence report at its disposal prior to the hearing. Further, Petitioner does not indicate
how the alleged deficiencies of trial counsel with regard to sentencing were prejudicial.
Petitioner is not entitled to relief on this issue. Powers, 942 S.W.2d at 558.
Lastly, Petitioner alleges that trial counsel was ineffective for failing to compel his
presence at the depositions taken of the witnesses and experts. The petition filed by
Petitioner lists trial counsel’s failure to petition for an independent medical expert but does
not allege that trial counsel was ineffective for failing to compel Petitioner’s presence at the
depositions of experts and witnesses. Moreover, Petitioner did not present any argument to
show how trial counsel’s alleged deficiencies were prejudicial. This claim is waived.
Conclusion
For the foregoing reasons, the judgment of the post-conviction court is affirmed.
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JERRY L. SMITH, JUDGE
1
The State counters that Petitioner failed to raise this issue in his petition for post-conviction relief and,
therefore, has waived the issue on appeal. W hile Petitioner did not raise this issue by itself in the lengthy petition for
relief, Petitioner made allegations throughout the petition that trial counsel failed to communicate with him about the
case.
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