Charles Everett Lowe-Kelley v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
January 12, 2016 Session

CHARLES EVERETT LOWE-KELLEY v. STATE OF TENNESSEE

Appeal from the Circuit Court for Maury County
No. 17948 Stella L. Hargrove, Judge

No. M2015-00138-CCA-R3-PC – Filed February 24, 2016
_____________________________

Petitioner, Charles Everett Lowe-Kelley, appeals the denial of his petition for post-
conviction relief, arguing that he received the ineffective assistance of counsel. He also
argues that his consecutive life sentences violate Miller v. Alabama, 132 S. Ct. 2455,
2469 (2012). We conclude that Petitioner has not proven that he received ineffective
assistance of counsel and that his effective sentence does not violate Miller.
Accordingly, the decision of the post-conviction court is affirmed.

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

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which THOMAS T.
WOODALL, P.J., and JOHN EVERETT WILLIAMS, J., joined.

Thomas M. Hutto, Columbia, Tennessee, for the appellant, Charles Everett Lowe-Kelley.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee and David H.
Findley, Assistant Attorneys General; Brent Cooper, District Attorney General; and
Robert Carter and Ann Filer, Assistant District Attorneys General, for the appellee, State
of Tennessee.

OPINION

I. Procedural History

Petitioner was convicted of two counts of first degree murder and nine counts of
attempted first degree murder for firing a gun into a crowded vehicle. State v. Lowe-
Kelley, 380 S.W.3d 30, 32 (Tenn. 2012). He received two consecutive life sentences to
run concurrently with nine fifteen-year sentences. Id. His convictions and sentences
were affirmed on direct appeal. State v. Charles E. Lowe-Kelley, No. M2012-01933-
CCA-RM-CD, 2012 WL 5873512 (Tenn. Crim. App. Nov. 20, 2012), perm. app. denied
(Tenn. Mar. 5, 2013).

On November 12, 2013, Petitioner filed a pro se petition for post-conviction relief.
On March 14, 2014, appointed counsel filed an amended petition alleging ineffective
assistance of counsel, and the post-conviction court held an evidentiary hearing on
November 24, 2014.

II. Factual Summary of Trial1

Petitioner attended a raucous party on April 12, 2008, at the National Guard
Armory in Columbia. During the party, several fights occurred, one of which involved
one of the victims. The police eventually shut down the party. Petitioner was recorded
on police dashboard camera footage leaving the party with one of the codefendants. A
police officer observed that same codefendant leaving the party in a gold-colored vehicle
with three passengers.

According to victims’ testimony, their car full of people was driving away from
the party, when another vehicle approached from behind. As the pursuing vehicle pulled
up beside the victims, it turned off its headlights and gunfire erupted. The driver of the
victims’ vehicle reacted by ramming the pursuing vehicle off the road. Shortly thereafter,
police found the gold-colored vehicle off-road in a ditch. Two of the codefendants
remained at the scene and were arrested after police found an automatic rifle near their
car. The other two passengers seen earlier were not present at the scene.

Tiffany Fuller, a girlfriend of one of the codefendants, testified that Petitioner
called her at 2:00 a.m. and told her that there had been ―an accident‖ involving her
boyfriend. Petitioner informed her that her boyfriend was still at the scene, but Petitioner
had fled. Petitioner did not admit to her that he was a shooter, but he specifically told her
that two of the codefendants did not fire a weapon.

Jason Fletcher testified that Petitioner arrived at his home the next afternoon and
said that he needed to talk to him. Petitioner’s uncovered legs were cut up ―like he’d
been running through thorns.‖ Petitioner explained that a fight had occurred at the party
and after it ended, one of the codefendants gave him a gun. As Petitioner and his

1
These facts are derived from this Court’s opinion in State v. Charles E. Lowe-Kelley, No.
M2012-01933-CCA-RM-CD, 2012 WL 5873512, at *1-5 (Tenn. Crim. App. Nov. 20, 2012), perm. app.
denied (Tenn. Mar. 5, 2013).
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codefendants pulled up to the victims’ vehicle, he and one of the others began shooting.
Petitioner used a .38 caliber handgun and ―emptied the clip.‖

Paul Swafford testified that two days later, Petitioner admitted to him that he had
been involved in the shooting, which he described as a ―cold hit.‖ Petitioner admitted
that he had used a .38 caliber handgun.

A .38 caliber bullet was found lodged in the victims’ vehicle and both of the
deceased victims were killed by bullets from the same .38 caliber handgun, although the
gun was never recovered. A green bandana found at the scene contained DNA from
Petitioner and one of his codefendants. When arrested, Petitioner had newspaper
clippings in his pants pocket about the shooting and the arrest of two of the codefendants.

III. Factual Summary of Post-conviction Hearing

Petitioner testified that he was sixteen years old when he committed the
underlying offenses, and under his effective sentence, he will not be eligible for parole
until 2130.

Petitioner recalled that trial counsel only met with him twice before the trial. Trial
counsel discussed some of the witness statements with Petitioner, but trial counsel did not
review all of the discovery materials with him. Petitioner did not recall them discussing
his statement to police. Trial counsel did not inform Petitioner that one of the
codefendants made two different statements to the police, in the first of which he denied
that Petitioner was involved. Trial counsel told Petitioner that he attended the trial of one
of the codefendants, but trial counsel did not discuss any of the details of the testimony
that was presented at that trial. Trial counsel did not provide Petitioner with a personal
copy of the discovery despite requests to do so.

However, Petitioner admitted that his first attorney did review all of the discovery
materials with him, and Petitioner frankly acknowledged to the post-conviction court
judge, ―I knew what they had against me, m’am.‖ Petitioner and trial counsel discussed
the statements of Paul Swafford, Jason Fletcher, and Tiffany Fuller, but Petitioner never
saw copies of the statements. Petitioner admitted that he was not surprised by any of the
testimonies given by those witnesses at trial.

They did not discuss potential witnesses, and trial counsel did not ask Petitioner
about whether there were witnesses who could testify on his behalf. However, Petitioner
admitted that he did not know of any witnesses who would have been beneficial to his
case except possibly an individual named Antonio Warfield. Petitioner did not explain
what testimony Mr. Warfield could have provided. To Petitioner’s knowledge, trial
counsel did not do any pre-trial investigations into the State’s witnesses or try to find
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potentially favorable witnesses.2 They did not discuss the possibility of calling any of the
codefendants to testify. Trial counsel did not inform Petitioner that the State was going
to introduce expert testimony about some of the physical evidence and did not discuss the
possibility of obtaining funds for hiring a counter expert witness to testify at trial.

Trial counsel did not explain to Petitioner the concept of criminal responsibility,
but he did explain the concept of felony murder. Petitioner knew that trial counsel filed a
motion for continuance and a motion to suppress a recording of a phone call made to
Petitioner by one of the codefendants from the county jail before Petitioner had been
arrested. Trial counsel did not discuss their trial strategy much other than that they would
rely on portraying Petitioner as a young and abused juvenile. Petitioner did not feel
prepared to go to trial. Trial counsel did not discuss with Petitioner his decision not to
present any proof.

Petitioner knew that he had the right to testify at trial, but trial counsel did not
explain it to him. They did not discuss the advantages and disadvantages of testifying.
Trial counsel did not tell Petitioner that his juvenile record could not be used to impeach
him at trial if he testified. Petitioner admitted that it was his decision not to testify but
said he made that decision because of trial counsel’s advice. After trial counsel advised
Petitioner that it was in his best interest not to testify, ―it really closed all the conversation
of it.‖ Petitioner said that if he had testified it ―would be something different‖ than what
the witnesses against him said, but Petitioner did not elaborate on the details of what his
testimony would have been. Trial counsel did not prepare Petitioner for the Momon
hearing, and during the hearing, Petitioner felt ―intimidated‖ by the questions asked by
the trial judge.

Trial counsel did not meet with Petitioner before the sentencing hearing and did
not inquire about Petitioner’s mental health or substance abuse issues, although Petitioner
did not testify that he had either. They did not discuss potential character witnesses for
trial or sentencing. Petitioner admitted that he did not ask his mother to testify at the
sentencing hearing because ―she probably doesn’t want to have any more to do with it
than she already does.‖ Petitioner proffered a written statement at the sentencing hearing,
but trial counsel did not help him prepare it. Petitioner recalled that he talked to trial
counsel about introducing Petitioner’s high school diploma at the sentencing hearing.

Mike Bottoms was the retired District Attorney General for the 22nd District of
Tennessee. He was the lead prosecutor on this case. The District Attorney’s Office had
an open-file discovery policy, but he could not remember whether trial counsel ever
visited the office to look at the discovery file in this case. Mr. Bottoms remembered that

2
Paul Swafford was a witness for the State during Petitioner’s trial. He testified at the
evidentiary hearing that trial counsel did not contact him prior to Petitioner’s trial.
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trial counsel sat through the entire trial of one of the codefendants. Mr. Bottoms testified
that the State’s strategy would have been the same in this case, even if the phone call had
been suppressed, because the lynchpin evidence was the in-court testimony of one of
Petitioner’s friends to whom he had admitted the shooting.

Attorney Billy Barnes was initially appointed to represent Petitioner during the
juvenile proceedings before this case was transferred to the circuit court, where trial
counsel began his representation. Mr. Barnes estimated that he had ―probably four
meetings, varying between thirty minutes and two hours‖ with Petitioner. Trial counsel
called Mr. Barnes ―probably four‖ times with questions about the case; those calls were
―probably varying from an hour in length [at] the longest and probably fifteen minutes [at
the] shortest.‖ Mr. Barnes turned over his entire file to trial counsel, including the
complete discovery file that he received from the District Attorney’s Office. They had a
discussion about the case when they exchanged the file. Mr. Barnes was aware of a
jailhouse phone call, but he never listened to it.

Trial counsel testified that he had been practicing law for less than three years
when he began representing Petitioner. He had only tried one other criminal case. Trial
counsel did not have any previous experience with a homicide case, a capital case, or a
case with a potential life sentence. Petitioner’s case ―took up the brunt‖ of trial counsel’s
time, but he also had several other ongoing matters.

Trial counsel spent several hours preparing for the case. He met with Petitioner
three or four times. They discussed the charges and potential defenses. They also
discussed potential witnesses, including Mr. Warfield, but trial counsel did not recall
Petitioner suggesting any other favorable witnesses. They did not discuss potential
character witnesses. Trial counsel did not feel that Petitioner had any favorable witnesses
worth calling.

After watching the entire trial of one of the codefendants, trial counsel decided
that the best trial strategy was to raise reasonable doubt as to whether Petitioner was
present. To prepare for the trial, trial counsel listened to the testimony of the officers
about their interviews with witnesses. He read the witness statements. He listened to the
transfer hearing. He reviewed everything in the case file. Trial counsel was unaware that
he could have requested funds for an expert witness; however, he did not feel there was
an apparent need for an expert.

Trial counsel did not believe that there was a basis for suppressing the jailhouse
phone call under Crawford or Bruton. Trial counsel acknowledged that he did not raise
an authentication objection at trial as to the phone call.

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 Trial counsel admitted that he did not interview Jason Fletcher, Paul Swafford,
Tiffany Fuller, or any of the codefendants, although he spoke to the attorney of one of the
codefendants. However, trial counsel discussed those witnesses and their statements with
Petitioner, and trial counsel obtained reports of their criminal background checks. Trial
counsel did not speak to any of the victims. He did not talk to any of the State’s expert
witnesses before trial. However, trial counsel did talk to Mr. Warfield about this case.
Trial counsel testified that he was prepared to cross-examine all of the witnesses who
testified during the trial.

Trial counsel was aware of Tiffany Fuller before trial, but she was not listed as a
witness and her statement was not in the discovery. Trial counsel did not go to the
District Attorney’s Office to ensure that he had the entire discovery file. Trial counsel
discussed Tiffany Fuller with Petitioner before the trial. Trial counsel sought to suppress
her testimony at trial once he discovered that she would be testifying. Nonetheless, trial
counsel felt he was prepared to cross-examine Ms. Fuller based on his discussions with
Petitioner about her.

During the trial of one of the codefendants, trial counsel spoke to one of the
witnesses who said that he saw three people get into the vehicle involved in the shooting,
but he did not see Petitioner get into that vehicle. Trial counsel impeached the witness
with his prior testimony when he testified differently at Petitioner’s trial. Trial counsel
did not investigate whether anyone else saw Petitioner get into the vehicle.

One of the codefendants had given two inconsistent statements to police; in the
first of which he did not identify Petitioner as being involved in the crime. However, trial
counsel did not think that he could get that codefendant to testify on Petitioner’s behalf.
Consequently, trial counsel could not introduce the codefendant’s favorable first
statement to police.

They discussed Petitioner’s decision not to testify. They went through what the
substance of Petitioner’s testimony would be if he decided to testify. Trial counsel
advised Petitioner that he had the right to testify. This was the first Momon hearing in
that judicial district for trial counsel. The district’s common practice was for the trial
judge to conduct the Momon hearing. Trial counsel sat next to Petitioner during the
hearing.

In regard to sentencing, trial counsel did not discuss the psychological report with
the examiner who did the pre-trial mental evaluation of Petitioner and did not consider
having him testify. Trial counsel did not consider calling the Administrator of the
Juvenile Detention Center as a witness at the sentencing hearing, even though the
Administrator wrote a letter on Petitioner’s behalf. Trial counsel believed that he met
with Petitioner before the sentencing hearing, but he could not recall doing so.
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According to trial counsel, he did help Petitioner prepare the written statement. Trial
counsel asked Petitioner’s mother to testify at the sentencing hearing but she declined.

After the hearing, the court denied post-conviction relief, and Petitioner filed a
timely notice of appeal.

II. Analysis

Defendant argues that the post-conviction court erred in denying his petition for
post-conviction relief. He maintains that trial counsel provided ineffective assistance
because he failed: (1) to have the jailhouse phone call excluded from the trial; (2) to
prepare for the testimony of Ms. Fuller; (3) to investigate known and potential witnesses;
(4) to request funds to hire an expert witness; (6) to present a defense; (7) to present
witnesses at the sentencing hearing; and (8) to properly conduct the Momon hearing.
Petitioner also asserts that trial counsel was too inexperienced and should have been
required to satisfy our supreme court’s rules for counsel in capital cases. Finally,
Petitioner argues that his sentence violates the Eighth Amendment as interpreted by the
United States Supreme Court in Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012).

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). ―Evidence is clear and convincing when there is
no serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.‖ Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). On appeal,
this Court gives deference to the trial court’s decision on questions concerning witness
credibility, the weight and value to be given to testimony, and the factual issues raised by
the evidence. Momon, 18 S.W.3d at 156 (citing Henley v. State, 960 S.W.2d 572, 578
(Tenn. 1997)). This Court will not reweigh or reevaluate the evidence presented below
and is bound by the findings of the post-conviction court unless the evidence
preponderates otherwise. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). However, the
post-conviction court’s conclusions of law and application of the law to the facts are
subject to de novo review with no presumption of correctness. Fields v. State, 40 S.W.3d
450, 457 (Tenn. 2001).

A. Ineffective Assistance

Both the Sixth Amendment to the United States Constitution and article I, section
9 of the Tennessee Constitution guarantee the right of an accused to the effective
assistance of counsel. The test for ineffective assistance of counsel is a two-pronged test:
a petitioner ―must show first that counsel’s performance was deficient and second that the
deficient performance prejudiced the defense.‖ Burnett v. State, 92 S.W.3d 403, 408
(Tenn. 2002) (citing Strickland v. Washington, 466 U.S. 668 (1984)). ―Because a
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petitioner must establish both prongs . . . 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 assistance was reasonable
considering all the circumstances.‖ Strickland, 466 U.S. at 688. Counsel’s performance
is considered reasonable ―if the advice given or the services rendered [were] within the
range of competence demanded of attorneys in criminal cases.‖ Henley, 960 S.W.2d at
579 (citing Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). To be considered
deficient, counsel’s acts or omissions must fall below an objective standard of
reasonableness under prevailing professional norms. Strickland, 466 U.S. at 688; Henley,
960 S.W.2d at 579. However, this Court will not use hindsight to second guess counsel’s
tactical decisions unless the choices were uninformed because of inadequate preparation.
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

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. Prejudice is shown where ―there is a reasonable probability 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). This reasonable probability must be
―sufficient to undermine confidence in the outcome.‖ Id.

Petitioner argues that trial counsel was ineffective because he failed to have the
recording of the phone call between Petitioner and one of the codefendants excluded
from evidence at trial. First, Petitioner argues that trial counsel’s motion to suppress was
inadequate because it did not contain developed argument or citations to controlling law.
Second, Petitioner argues that trial counsel failed to object to the evidence at trial on the
basis that it was not properly authenticated.

Assuming, without deciding, that trial counsel’s performance was deficient in this
regard, Petitioner has not shown that there is a reasonable probability that the outcome of
the trial would have been any different, even if the phone call had been excluded from the
evidence. The evidence against Petitioner was overwhelming. Three witnesses testified
that he admitted his involvement in the shooting. Given the nature and extent of the other
evidence properly before the jury, we have no difficulty in concluding that Petitioner still
would have been convicted and was not prejudiced by trial counsel’s actions with regard
to the phone call. Accordingly, Petitioner is not entitled to relief on this basis.

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 Petitioner argues that trial counsel was ineffective because he was unprepared for
the testimony of Ms. Fuller at trial. We disagree. Both trial counsel and Petitioner
acknowledged that they discussed Ms. Fuller’s statement to police and Petitioner’s
conversation with her. Although trial counsel did not believe that Ms. Fuller would be
called as a witness, he testified that he was prepared to cross-examine her and his cross-
examination would not have been materially different with additional preparation.
Petitioner has not offered any specific suggestion as to what more trial counsel could
have learned about this witness. Therefore, Petitioner has failed to prove either
deficiency or prejudice. This issue is without merit, and Petitioner is not entitled to relief
on this basis.

Petitioner argues that trial counsel was ineffective because he did not conduct an
independent investigation into the State’s witnesses and did not investigate potential
witnesses who could have testified on Petitioner’s behalf. Petitioner has again failed to
prove either deficiency or prejudice by trial counsel. Petitioner has not offered any
evidence as to what any additional investigation would have revealed. Further, he
testified at the evidentiary hearing that he did not know of any witnesses who would have
been beneficial to him at trial had they been called on his behalf, aside from possibly Mr.
Warfield, who did not testify at the evidentiary hearing. See Black v. State, 794 S.W.2d
752, 757 (Tenn. Crim. App. 1990) (―When a petitioner contends that trial counsel failed
to discover, interview, or present witnesses in support of his defense, these witnesses
should be presented by the petitioner at the evidentiary hearing.‖). Therefore, Petitioner
has failed to prove either deficiency or prejudice by trial counsel. This issue is without
merit, and Petitioner is not entitled to relief on this basis.

Petitioner argues that trial counsel was ineffective because he did not hire an
expert witness to rebut the testimony of the State’s experts. However, Petitioner did not
present any expert witness testimony at the evidentiary hearing that would have benefited
him if it had been presented to the jury. See id. Because Petitioner did not introduce
evidence of favorable expert testimony, he has not proven that any such testimony could
have been obtained for trial or that the introduction of such testimony could have affected
the outcome of the trial. Therefore, Petitioner has failed to prove either deficiency or
prejudice by trial counsel. This issue is without merit, and Petitioner is not entitled to
relief on this basis.

Petitioner argues that trial counsel was ineffective because he did not present a
defense, that is, he did not present any proof at trial. We disagree. Trial counsel testified
that his trial strategy was to raise reasonable doubt in the minds of the jury about whether
Petitioner was actually present and involved in the shooting. Trial counsel felt that he
could do this through cross-examination and argument. We will not second guess this
strategy, even though it was unsuccessful. See House v. State, 44 S.W.3d 508, 515
(Tenn. 2001) (―The fact that a particular strategy or tactic failed or hurt the defense does
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not, standing alone, establish unreasonable representation.‖). Petitioner has not proven
that trial counsel selected that strategy based on inadequate preparation. See Cooper v.
State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992) (holding that deference to the
tactical decisions of trial counsel is dependent upon a showing that the decisions were
made after adequate preparation). Furthermore, Petitioner has not identified any
evidence that trial counsel could have presented at trial that would have affected the
outcome of the proceeding. Therefore, Petitioner has failed to prove either deficiency or
prejudice by trial counsel. This issue is without merit, and Petitioner is not entitled to
relief on this basis.

Petitioner argues that trial counsel provided ineffective assistance at the sentencing
hearing because he did not call any witnesses to testify on Petitioner’s behalf. We
disagree. Petitioner suggests that trial counsel could have called the psychologist who
conducted the pre-trial psychological evaluation or the administrator of the juvenile
detention center. Again, Petitioner did not provide any witnesses at the evidentiary
hearing who would have been helpful to him at the sentencing hearing. In fact, both
Petitioner and trial counsel testified that Petitioner’s own mother was not willing or
interested in aiding her son in this regard. Therefore, Petitioner has failed to prove either
deficiency or prejudice by trial counsel. This issue is without merit, and Petitioner is not
entitled to relief on this basis.

Petitioner argues that trial counsel was ineffective by letting the trial judge
conduct the Momon hearing rather than questioning Petitioner himself.3 However,
Petitioner does not argue that the Momon hearing as performed by the trial judge
somehow coerced him into waiving his right to testify. Petitioner testified that he
accepted trial counsel’s advice that testifying at trial would not be in his best interest.
Although Petitioner testified at the evidentiary hearing that he was unaware that a formal
Momon hearing in open court would occur, he also testified that he fully intended not to
testify at trial before the Momon hearing occurred. Petitioner claims he was intimidated
by the inherent authority of the trial judge, but the hearing itself had no effect on his
decision. Petitioner has shown neither deficiency nor prejudice in trial counsel’s
acquiescence to the trial judge’s performance of the Momon hearing. This issue is
without merit, and Petitioner is not entitled to relief on this basis.

Because Petitioner has failed to prove by clear and convincing evidence that his
trial counsel acted deficiently during the course of his representation and that any
deficiencies were so prejudicial that there is a reasonable probability that the outcome of
the trial would have been different, Petitioner has not established that he received the

3
Petitioner relies on language in the Momon decision tasking defense counsel with questioning
the defendant and admonishing that, ―[u]nder normal circumstances, therefore, the Trial judge should play
no role in this.‖ 18 S.W.3d at 162.
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ineffective assistance of counsel in violation of his Sixth Amendment rights.
Accordingly, Petitioner is not entitled to post-conviction relief on this basis.

B. Capital Case Qualifications

Petitioner argues that ―Tennessee Supreme Court Rule 13 § 3 should apply to all
first-degree murder cases.‖ That rule establishes certain ―minimum qualifications‖ for
defense counsel in capital cases. Because that rule does not apply to non-capital murder
cases, it is not a legal basis for relief in this case.
C. Miller v. Alabama

Petitioner argues that his effective sentence violates the Eighth Amendment. In
Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012), the Supreme Court ruled that a
mandatory sentence of life without the possibility of parole for a minor constitutes
unconstitutionally cruel and unusual punishment. The Supreme Court recently declared
the holding of Miller to be retroactively applicable to those, like Petitioner, who received
such a sentence before Miller was decided. Montgomery v. Louisiana, 136 S. Ct. 718,
732 (2016). Petitioner argues that his two consecutive life sentences place his release
eligibility date far beyond his life expectancy, thereby rendering his possibility of parole
illusory and effectively operating as a sentence of life without parole in violation of
Miller.

We believe that Petitioner’s sentence does not run afoul of Miller for two reasons.
First, the holding of Miller is simply limited to a life sentence without the possibility of
parole (emphasis added). See 132 S. Ct. at 2469. Petitioner did not receive such a
sentence for any of the crimes of which he was convicted. In Tennessee, a defendant
convicted of first degree murder is subject to three potential sentences: (1) death, (2) life
without the possibility of parole; or (3) life. T.C.A. § 39-13-202(c). When a defendant
currently receives a life sentence in Tennessee, no parole is involved. He serves a
specific number of years, and then he is released with no parole supervision. 4 His
sentence is done.

To be clear, although it may appear otherwise, Defendant received a sentence to
which he is eligible for release. He received two life sentences, consecutive. Miller is
silent about its applicability to consecutive sentences imposed for multiple convictions,
and we are unwilling to stretch its holding beyond its four corners. On numerous
occasions, this Court has refused to extend Miller to life sentences. See Floyd Lee Perry,
Jr. v. State, No. W2013-00901-CCA-R3-PC, 2014 WL 1377579, at * (Tenn. Crim. App.
4
Pursuant to our statutes, life imprisonment permits release eligibility after serving fifty-one
years. See T.C.A. § 40–35–501(h)(1), (i)(1), (i)(2)(a) (2010) (amended 2012, 2013, 2014).

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Apr. 7, 2014), perm. app. denied (Tenn. Sept. 18, 2014) (―While the logical next step
may be to extend protection to these types of sentences, that is not the precedent which
now exists.‖); accord Kenneth A. Adams v. State, No. W2014-02160-CCA-R3-PC, 2015
WL 5680228, at *2 (Tenn. Crim. App. Sept. 28, 2015), perm. app. filed (Tenn. Nov. 30,
2015); Billy L. Grooms v. State, No. E2014-01228-CCA-R3-HC, 2015 WL 1396474, at *
(Tenn. Crim. App. Mar. 25, 2015), perm. app. denied (Tenn. July 21, 2015), petition for
cert. filed, Billy L. Grooms v. Tennessee, No. 15-7604 (U.S. Oct. 19, 2015); Kayln Marie
Polochak v. State, No. M2013-02712-CCA- R3-CD, 2015 WL 226566, at *36 (Tenn.
Crim. App. Jan. 16, 2015), perm. app. denied (Tenn. May 14, 2015); Cyntoia Denise
Brown v. State, No. M2013-00825-CCA-R3-PC, 2014 WL 5780718, at *21 (Tenn. Crim.
App. Nov. 6, 2014), perm. app. denied (Tenn. May 15, 2015). We continue to follow
that pattern of applying Miller simply as written.

Second, we note that Miller did not hold that a juvenile can never be sentenced to
life without the possibility of parole. Miller, 132 S. Ct. at 2469 (expressly declining to
adopt a categorical approach). Instead, it merely held that a mandatory sentencing
scheme that withholds from the judge or jury the authority to impose a sentence less than
life without the possibility of parole, even where appropriate based on mitigating
evidence regarding a juvenile’s youthful shortcomings and amenability to correction, is
unconstitutional. Id. at 2468. The Supreme Court explained that mandatory imposition
of the harshest criminal sentence still available for juveniles,5 without individualized
sentencing consideration, ―poses too great a risk for disproportionate punishment.‖ Id. at
2469. In this case, neither the individual sentences nor the effective (consecutive)
sentence was mandatory—the trial court was required to give individualized
consideration to both the offender, including his youth, and the offense when crafting
Petitioner’s effective sentence. See T.C.A. § 39-13-204(i)-(j); see also T.C.A. § 40-35-
115(b).

Because Petitioner did not receive a mandatory sentence of life without parole, his
sentence does not violate the Eighth Amendment according to Miller. Petitioner is not
entitled to relief on this basis.

5
In Roper v. Simmons, 543 U.S. 551 (2005), the Supreme Court declared the death penalty for
juvenile offenders unconstitutional.
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 Conclusion

Because Petitioner has not proven that he received ineffective assistance of
counsel at trial or that his sentence is unconstitutional, he is not entitled to relief.
Accordingly, the decision of the post-conviction court is affirmed.

_________________________________
TIMOTHY L. EASTER, JUDGE

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