John Willie Stone v. State of Tennessee

06/06/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 19, 2017

JOHN WILLIE STONE v. STATE OF TENNESSEE

Appeal from the Circuit Court for Bedford County
No. 18042 F. Lee Russell, Judge

No. M2016-01269-CCA-R3-PC

A Bedford County Circuit Court jury convicted the defendant, John Willie Stone, of
burglary of an automobile, theft of property valued at $500 or less, and aggravated
assault, and the trial court imposed a total effective sentence of 21 years’ incarceration.
Shortly after the conclusion of his trial and prior to the entry of his judgments or his
sentencing hearing, the defendant filed a pro se motion seeking new counsel, which the
trial court interpreted as a petition for post-conviction relief on the basis of ineffective
assistance of counsel. Following a combined hearing on the defendant’s motion for new
trial and his purported petition for post-conviction relief, the trial court denied all claims.
In this appeal, the defendant challenges both the sufficiency of the convicting evidence
and the length of his sentence in addition to the ineffectiveness of his trial counsel.
Because the trial court erroneously treated the defendant’s motion for new counsel as a
petition for post-conviction relief, we vacate the portion of the trial court’s judgment
which denied post-conviction relief to the defendant. In all other respects, we affirm the
judgment of the trial court.

Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed in Part;
Vacated in Part

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS and CAMILLE R. MCMULLEN, JJ., joined.

Wesley Hall, Unionville, Tennessee, for the appellant, John Willie Stone.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Robert J. Carter, District Attorney General; and Michael D. Randles,
Assistant District Attorney General, for the appellee, State of Tennessee.
 OPINION

In April 2015, the Bedford County Grand Jury charged the defendant with
one count each of burglary of an automobile, theft of property valued at $500 or less, and
aggravated assault. The trial court conducted a jury trial in October 2015.

The State’s proof at trial showed that on the night of August 26, 2014,
Caitlin Pope drove her truck to her parents’ residence on East Franklin Street in
Shelbyville. She arrived at approximately 9:30 p.m. and parked in front of the house.
Ms. Pope left the vehicle unlocked with the windows down, and she placed her wallet in
a cup holder between the two front seats of the vehicle while she went inside the house.

Andrew Joel Doak testified that his parents lived next door to Ms. Pope’s
parents and that on the night of August 26, he had driven to his parents’ house to pick up
some food. As he was walking to his vehicle which was parked on Franklin Street, he
noticed “some legs hanging out a driver’s side vehicle next door.” Finding this
suspicious, Mr. Doak approached the vehicle, and the man, who was “hanging out of the
driver’s side window” and who was later identified as the defendant, jumped to the
ground and began to walk away. Mr. Doak followed the defendant and noticed that he
“st[uck] something under his shirt and down in his pockets.” Due to the darkness and the
fact that the defendant was wearing a hat, Mr. Doak was initially unable to discern much
about his appearance.

After Mr. Doak had followed the defendant a short distance, the defendant
suddenly turned and “threw his hands” up, asking Mr. Doak, “What’s up?” Mr. Doak
inquired what the defendant was doing, and the defendant responded that he wasn’t
“doing nothing.” Mr. Doak then accused the defendant of breaking into the truck, which
the defendant denied. The defendant then began to run. Mr. Doak gave chase, and the
defendant reached under his shirt and told Mr. Doak, “Don’t make me pull this on you.”
The defendant “darted away,” and Mr. Doak attempted to round a tree and cut him off
when the defendant tripped and fell to the ground. The defendant immediately jumped to
his feet and lunged at Mr. Doak; Mr. Doak was “really scared,” and his only thought was
“don’t let him get close enough if he does have” a weapon. To keep the defendant at bay,
Mr. Doak kicked him in the head, but the defendant managed to stay on his feet. Mr.
Doak and the defendant continued to scuffle, during which Mr. Doak saw “something get
throwed [sic] out from under [the defendant’s] shirt.” Eventually, Mr. Doak gained
control of the defendant and held him on the ground while Mr. Doak called 9-1-1. While
Mr. Doak was speaking with the 9-1-1 dispatcher, he felt something hit his arm. Mr.
Doak noticed that his right forearm had been cut near his elbow, and he saw “the blade . .
. coming at [his] arm again.” Mr. Doak informed the dispatcher that the defendant had a
knife, and he tossed his telephone aside so that he could concentrate on disarming the
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defendant. Mr. Doak was afraid of being stabbed. The defendant continued to struggle,
and Mr. Doak ultimately took control of the knife and cast it away, all the while keeping
the defendant pinned to the ground. Shelbyville Police Department (“SPD”) officers
arrived a short time later.

When SPD Lieutenant Mike Baker arrived at the scene, he recognized the
defendant “immediately.” Fellow SPD Officer Chris Vest handcuffed the defendant and
placed him in his patrol car, and Mr. Doak assisted Lieutenant Baker in locating the
folding knife and Ms. Pope’s wallet, both of which were a few feet from the area where
Mr. Doak had pinned the defendant to the ground. Officer Vest photographed the injury
to Mr. Doak’s arm, which photograph was admitted into evidence along with
photographs of Ms. Pope’s wallet and folding knife.

Lieutenant Baker acknowledged that the defendant had a “visible injury” to
his head, and Officer Vest recalled that the defendant had a “small cut” on the inside of
his thumb.

Just as Ms. Pope was preparing to leave 15 to 20 minutes after arriving at
her parents’ house, Mr. Doak arrived at the front door and handed Ms. Pope her wallet.
Ms. Pope verified that the contents of her wallet – a driver’s license and two debit cards –
were still there, but she noticed that the wallet “was smashed up.” Ms. Pope confirmed
that the value of her wallet and its contents were worth less than $500, and she denied
knowing the defendant or giving him permission to enter her vehicle and take her
property. Sometime later, Ms. Pope realized that a folding knife she kept in her truck
was missing. At trial, Ms. Pope identified the knife recovered from the crime scene as
her own.

With this evidence, the State rested. Following the trial court’s denial of
the defendant’s motion for judgments of acquittal and a Momon colloquy, the defendant
elected to testify.

The defendant testified that he was walking home on the night of August 26
when he realized that Mr. Doak was following him on Franklin Street. The defendant
asked Mr. Doak what he was doing, and Mr. Doak “just hauled off and . . . hit [him] with
something,” striking him in his left eye. The defendant clarified that Mr. Doak, prior to
striking him, had asked “what [the defendant] was doing in a vehicle or something.” The
defendant denied any involvement with a vehicle that night or even seeing a vehicle
before being attacked by Mr. Doak.

The defendant said that Mr. Doak continued to hit him throughout their
scuffle, causing the defendant to be “[v]ery dazed” and “confused.” Because Mr. Doak
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was choking him, he was concerned that Mr. Doak would kill him, and he was unable to
move freely. The defendant denied having a knife but agreed that he had sustained a cut
to his right thumb.

On cross-examination, the defendant stated that Mr. Doak had a knife,
which he produced shortly after encountering the defendant, and the defendant insisted
that he sustained the cut to his thumb when he attempted to block the knife thrust. The
defendant was unsure which hand Mr. Doak used to hold the knife, but he believed that
Mr. Doak was holding the closed knife in his hand while hitting the defendant. The
defendant was unsure when Mr. Doak managed to open the knife. When asked how the
knife ended up on the ground a few feet from the scuffle, the defendant responded that he
managed to shake the knife out of Mr. Doak’s hand. The defendant stated that he
attempted to tell Officer Vest his side of the story during the ride to the police station but
that Officer Vest essentially told him that “he really didn’t want to hear what [the
defendant] had to say.” The defendant adamantly denied breaking into Ms. Pope’s
vehicle and stealing her wallet and knife. The defendant opined that Mr. Doak “could
have stole[n]” Ms. Pope’s property and placed it at the crime scene.

On rebuttal for the State, Officer Vest testified that, during the brief, 60-
second ride to the jail, the defendant never attempted to tell “his side of the story” and
that, in fact, the defendant “never spoke to [Officer Vest] about anything that took place”
that night.

Based on this evidence, the jury convicted the defendant as charged of one
count each of burglary of an automobile, theft of property valued at $500 or less, and
aggravated assault. Shortly after the conclusion of the trial, the defendant filed, pro se, a
letter which the court interpreted to be a petition for post-conviction relief,1 and on
November 4, 2015, the court appointed counsel to represent the defendant in post-
conviction proceedings. The following day, the defendant appeared before the trial court
and voluntarily withdrew his petition, and the trial court memorialized the dismissal of
the petition on November 5.

On December 2, 2015, the defendant filed, pro se, a “Motion for
Appointment of Counsel,” in which he claimed to have received ineffective assistance of
trial counsel, outlining the ways in which he believed trial counsel had been ineffective
and asking the court to appoint new counsel. The trial court reappointed post-conviction
counsel to meet with the defendant and counsel him “about the wisdom of pursuing” a
post-conviction claim prior to a hearing on the defendant’s motion for new trial or a
sentencing hearing. At the December 3 hearing on the defendant’s motion, which the

1
No copy of this letter appears in the record.
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court again interpreted to be a “petition for postconviction,” the defendant assured the
court that he wished to pursue his post-conviction issues prior to the resolution of the
underlying issues. Post-conviction counsel stated on the record his admonitions to the
defendant:

I have explained to him that I have a concern that if he is
trying to, for lack of better terminology, fold into his motion
for new trial, PC elements, those are going to be decided and
he’s going to [be] barred from bringing those up later in a
petition for postconviction relief, somewhat undercutting his
positions. I have explained I’ll ardently argue whatever he
asks me to argue, but nonetheless, he is proceeding in that
direction . . . of folding in.

Because the defendant would not be dissuaded from his pursuit of ineffective assistance
of counsel issues, the trial court postponed the date of his sentencing hearing to permit
new counsel appropriate time for preparation. Following an April 2016 sentencing
hearing, the trial court sentenced the defendant as a career offender to a term of 6 years’
incarceration for the burglary of an automobile conviction, and the court imposed a 15-
year sentence as a Range III, persistent offender for the aggravated assault conviction, to
be served consecutively to one another. With respect to the misdemeanor theft
conviction, the trial court sentenced the defendant to a term of 11 months and 29 days’
incarceration, to be served concurrently with the other two convictions, for a total
effective sentence of 21 years.

At the outset of the May hearing on the defendant’s motion for new trial
and purported petition for post-conviction relief, the court again cautioned the defendant
about his choice to pursue post-conviction relief at that stage of the proceedings:

The Court: Okay. Mr. Stone, ordinarily, in a motion for
new trial, the subject matter is mistakes made by the judge,
mistakes made by the General, and mistakes made by the
jury, I guess. That’s what you would ordinarily be
complaining about in trying to get me to grant a new trial.

Now, it’s my understanding that you’ve expanded
upon that a bit and you are going to be complaining about
your former attorneys. Now, here’s the problem, we have a
separate procedure which is initiated by a petition where
you’re asking for post-conviction relief, and that comes along
after the trial, after the sentencing hearing, after the motion
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 for new trial, and after appellate review has been exhausted,
after your case has gone up to the Court of Criminal Appeals
and sometimes beyond, okay? And those are separate things
you’re entitled to as long as you file for them timely.

In this situation, it appears to me, at least, that part of
what you want to do, or have Mr. Hall do, in your, on your
motion for new trial is to raise questions about the
competence of and performance of your former attorneys.

Well, the danger for you there is you may waive or
give up, may very well waive or give up your right to raise
these same issues in a petition for post-conviction relief by
doing it too early or doing it early. You may give it up for
later purposes; you understand that?

[The defendant]: Yes, sir.

The Court: Understanding that, you still want Mr. Hall to
raise those questions about your former attorneys?

[The defendant]: Yes, sir, we’ve talked about it.

The Court: Okay. I – anything else anybody thinks we
need to put on the record about that? I don’t know how I
could be any plainer in all honesty. Mr. Hall, you’ve
discussed the same subject with him, I’m sure.

Mr. Hall: We have discussed it verbally in person and
he’s made it very clear through a very clear and cogent letter
he wrote outlining all of his points and – which was almost
repeated verbatim in the motion.

The Court: Okay. All right. All right. I guess we’re ready
to hear from you then.

At the hearing, trial counsel testified that, although he could not recall
whether he had provided the defendant with a copy of his discovery materials, he was
certain that he had reviewed and discussed all discovery materials with the defendant.
With respect to the indictment, counsel was certain that he had provided the defendant
with a copy because it was “a matter of policy” in his office. Trial counsel acknowledged
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that the defendant had requested independent fingerprint analysis and deoxyribonucleic
acid (“DNA”) testing on the knife recovered from the crime scene, but counsel had
declined, explaining that his investigation had revealed that the defendant, Mr. Doak, and
at least one SPD officer had handled the knife, thus rendering such testing irrelevant.

Trial counsel recalled that the defendant had asked him to “do all [he]
could” to have the assistant district attorney removed from the case on the basis that said
attorney had represented the defendant 20 to 25 years prior while working for the public
defender’s office. Trial counsel had informed the defendant that no basis existed to seek
the attorney’s removal; that the prosecutor had “no hard feelings” or “vendetta” toward
the defendant; and that the prosecutor had offered assurances that “he would deal with
this case on the merits.”

Trial counsel testified that there were “no surprises” in the defendant’s case
and that the defendant had not objected to the use of any witnesses at trial or expressed a
desire for a different jury pool. Trial counsel did recall discussing with the prosecutor the
fact that the defendant’s was the jury pool’s second criminal case but that only one of the
twelve jurors in the defendant’s trial had sat on the jury for the prior criminal case.

Trial counsel stated that he had discussed potential defenses with the
defendant but explained that the defendant was “clear” and “unequivocal” that he was not
the perpetrator of the crimes. Counsel had “no knowledge” of the defendant’s allegation
that he had been seen in a holding cell by two jurors during a break in the trial, but
counsel stated that, from his knowledge, the defendant was never seen wearing
handcuffs, shackles, or jail attire by any of the jurors.

Although the defendant had provided trial counsel with photographs
depicting the injuries he had sustained during his scuffle with Mr. Doak, trial counsel
decided against using the photographs at trial, believing that the testimony regarding the
injuries portrayed them to be worse than they actually were. Counsel did not recall a
discussion with the defendant regarding the requirement of a 45-day window between
conviction and sentencing, but the trial court interjected that such a discussion was
typically held in open court.

The defendant testified that trial counsel never provided him with any of his
discovery materials and that this failure inured to his prejudice because he was unaware
of all of the evidence that the State had against him. The defendant adamantly denied
that he had been provided with his arrest warrant. The defendant stated that counsel
failed to confer with him regarding their defense strategy or inform him of the witnesses
who would be testifying against him, specifically Ms. Pope. The defendant believed that,
had trial counsel sought DNA and fingerprint testing on the knife, the results would have
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shown that Mr. Doak had possessed the knife and that the defendant’s blood was on the
knife.

With respect to the defendant’s request to have the prosecutor removed
from his case, the defendant stated that he believed the prosecutor’s former representation
of the defendant was a “conflict of interest,” but when asked whether the prosecutor had
any knowledge about the defendant that potentially could have been used against him at
trial, the defendant responded, “No, not, not really.” The defendant explained that he had
requested a new jury because he felt that the jury who heard his case was “overworked”
and “tired” and that “they just wanted to get an easy verdict, guilty.” The defendant
admitted, however, that he did not make his request to trial counsel concerning a new
jury until after the trial had begun. The defendant recalled that, during a lunch break at
trial, he was seated just outside the “cage” which housed other inmates and that two
jurors saw him seated outside the cage when they walked past. After the break, the
defendant reported this incident to trial counsel, but trial counsel “didn’t really say much
about it,” and the trial continued.

The defendant testified that he had asked trial counsel to present to the jury
the photographs of his injuries because he believed they “really would have proved that
[he] was the one that was assaulted.” The defendant conceded that he had not brought
the photographs to court with him to admit into evidence.

With this evidence, the trial court denied both post-conviction relief and the
defendant’s motion for new trial, finding as follows:

Number one, this [defendant] has been around the system for
a very long time and knows very well how it worked. I, as I
recall from the sentencing hearing, he’s probably been getting
felony convictions for about 29 years or so, but it’s decades,
whatever it is. So, he knows good and well that a victim is
going to testify in virtually every case.

As far as his sentence being excessive, be happy for
you to take that up because he has an extraordinarily bad
record and the sentence he received is fully justified by, by
his record and the investigation report came in and that
absolutely shows how bad his record was.

We’ve, we’ve heard his explanation for why he thinks
he was convicted and Mr. Doak was not charged. It’s a
nonsensical explanation but he’s given it several times.
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Didn’t give it today. The proof was very strong against him.
Mr. Doak was very persuasive. [The defendant] was no more
persuasive at the trial than he has been today.

It is my belief that [the defendant] was perjuring
himself when he said he didn’t know that, who the victim was
or that she was going to testify or he’d never seen a warrant.
He would have been given a warrant at the front end. He
clearly had a warrant the day he bound the case over to Grand
Jury ‘cause he signed it and it has her name on it. He signed
on one side and her name is on the other side of that
document. So, he knew very well.

There’s no showing that but for knowing her exact
name it would have, he would not have been convicted. In
some ways, she was, with her limited testimony, she was
incidental to the trial. She told us what the items were that
were – it was her car, we know why she was over there. As,
as I recall, she lived in the neighborhood and – but anyway,
it’s, who she was made no difference in the outcome of this
case in my humble opinion.

The DNA evidence, we know there was a scuffle, we
know they both handled the knife. He admitted he was there.
The evidence was overwhelming he was there. The presence
of or absence of his DNA or Mr. Doak’s DNA, it was just
irrelevant to the situation. The picture of the injuries, it was
not contested about his injuries, so that made no difference
whatsoever in the outcome of the case.

It appears to me that [trial counsel] met with him
adequately, and that [trial counsel] was prepared, and that [the
defendant] was prepared. We have a limited number of
witnesses here. It is not a situation where there were surprise
witnesses. There were two victims, a couple of officers. I
mean, there’s just no surprise to this. There’s not a lot of
preparation that can be done. You know, what’s [the
defendant] going to tell [trial counsel] that’s going to add to
his ability to impeach any of those people? None whatsoever.

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 As far as what [the prosecutor] did or didn’t know, [the
prosecutor] didn’t have a conflict because he not only, there’s
no evidence that he had any information that would have
compromised him but he didn’t introduce it if he did. If he
had all this information in his head, he didn’t use it in front of
that jury to get this man convicted. So, this, this idea of a
conflict is just pure fiction. And was there insufficient
evidence? The evidence was overwhelming, and not only
was sufficient, it was overwhelming in this particular case.

The trial court memorialized its findings in an order, concluding that trial counsel’s
performance was not deficient and that the defendant had failed to prove that he was in
any way prejudiced by trial counsel’s representation.

Following this denial, the defendant filed a timely notice of appeal. In this
appeal, the defendant contends that the evidence was insufficient to support his
convictions, that the sentence imposed was excessive, and that trial counsel’s
representation was deficient and prejudicial. We will address each issue in turn.

I. Sufficieny

The defendant first contends that the evidence adduced at trial was
insufficient to sustain his convictions. We disagree.

We review the defendant’s claim of insufficient evidence mindful that our
standard of review is whether, after considering the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 319 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This
standard applies to findings of guilt based upon direct evidence, circumstantial evidence,
or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011).

When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
Questions concerning the credibility of the witnesses, the weight and value of the
evidence, as well as all factual issues raised by the evidence are resolved by the trier of
fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must
afford the State the strongest legitimate view of the evidence contained in the record as
well as all reasonable and legitimate inferences which may be drawn from the evidence.
Id.
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 “A person commits burglary who, without the effective consent of the
property owner . . . [e]nters any . . . automobile, . . . or other motor vehicle with intent to
commit a felony [or] theft . . . .” Id. § 39-14-402(a)(4). “A person commits theft of
property if, with intent to deprive the owner of property, the person knowingly obtains or
exercises control over the property without the owner’s effective consent.” Id. § 39-14-
103. Aggravated assault is an intentional or knowing “assault as defined in § 39-13-
101(a)(1)” that is committed via the use or display of a deadly weapon. T.C.A. § 39-13-
102(a)(1)(A)(iii). Assault, as is relevant to this case, occurs when one “[i]ntentionally or
knowingly causes another to reasonably fear imminent bodily injury.” Id. § 39-13-
101(a)(2). A deadly weapon includes “[a]nything that in the manner of its use or
intended use is capable of causing death or serious bodily injury.” Id. § 39-11-
106(a)(5)(B). Bodily injury “includes a cut, abrasion, bruise, burn or disfigurement, and
physical pain or temporary illness or impairment of the function of a bodily member,
organ, or mental faculty.” Id. § 39-11-106(a)(2).

In the instant case, the proof at trial established that Mr. Doak saw the
defendant’s legs hanging from the driver’s side window of Ms. Pope’s vehicle. After the
defendant disentangled himself from the vehicle, Mr. Doak observed the defendant
placing something underneath his shirt and into his pockets. During the ensuing scuffle,
Mr. Doak saw something fall from the defendant’s shirt onto the ground. While Mr.
Doak was attempting to restrain the defendant, the defendant stabbed Mr. Doak in the
forearm with a knife. Mr. Doak testified that he was “really scared” throughout his
encounter with the defendant and that he was concerned that the defendant might stab
him again. After police officers arrived on the scene and took the defendant into custody,
Lieutenant Baker and Mr. Doak located Ms. Pope’s wallet and folding knife on the
ground near the scene of the scuffle. Ms. Pope identified both her wallet and knife for
the jury and testified that the defendant did not have her permission to enter her vehicle
or take her property.

Viewing all of this evidence in the light most favorable to the prosecution,
we find that the evidence overwhelmingly supports the defendant’s convictions of
burglary of an automobile, misdemeanor theft, and aggravated assault.

II. Sentencing

The defendant next contends that the sentences imposed for his burglary of
an automobile and aggravated assault convictions were generally excessive. Again, we
disagree.

Our standard of review of the trial court’s sentencing determinations in this
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case is whether the trial court abused its discretion, but we apply a “presumption of
reasonableness to within-range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707
(Tenn. 2012). The application of the purposes and principles of sentencing involves a
consideration of “[t]he potential or lack of potential for the rehabilitation or treatment of
the defendant . . . in determining the sentence alternative or length of a term to be
imposed.” T.C.A. § 40-35-103(5). Trial courts are “required under the 2005
amendments to ‘place on the record, either orally or in writing, what enhancement or
mitigating factors were considered, if any, as well as the reasons for the sentence, in order
to ensure fair and consistent sentencing.’” Bise, 380 S.W.3d at 706 n.41 (citing T.C.A. §
40-35-210(e)). Under the holding in Bise, “[a] sentence should be upheld so long as it is
within the appropriate range and the record demonstrates that the sentence is otherwise in
compliance with the purposes and principles listed by statute.” Id. at 709.

Our supreme court has held that the standard of review adopted in Bise
“applies similarly” to the imposition of consecutive sentences, “giving deference to the
trial court’s exercise of its discretionary authority to impose consecutive sentences if it
has provided reasons on the record establishing at least one of the seven grounds listed in
Tennessee Code Annotated section 40-35-115(b).” State v. Pollard, 432 S.W.3d 851,
861 (Tenn. 2013).

Here, the record reflects that the trial court, in sentencing the defendant,
considered all appropriate principles set forth in Code section 40-35-210(b). The court
found no mitigating factors and two enhancement factors to be applicable: that the
defendant had a prior history of criminal convictions in addition to those necessary to
establish the appropriate range and a failure to comply with past conditions of release,
noting that the defendant had an extensive criminal history spanning some 30 years and
that he had five prior revocations of probation. See T.C.A. § 40-35-114(1), (8). The
presentence investigation report established that the defendant had at least seven prior
felony convictions in addition to multiple misdemeanor convictions. The court then
sentenced the defendant as a career offender2 with respect to his conviction of burglary of
an automobile and as a Range III, persistent offender3 with respect to his aggravated
assault conviction, and the court imposed the maximum sentences of six years and 15
years, respectively, to be served consecutively to one another for a total effective

2
A career offender includes a defendant “who has received . . . [a]t least six (6) prior felony
convictions of any classification if the defendant’s conviction offense is a Class D or E felony.” T.C.A. §
40-35-108(a)(3).
3
A persistent offender includes a defendant “who has received . . . [a]ny combination of five (5) or
more prior felony convictions within the conviction class or higher or within the next two (2) lower
felony classes, where applicable.” T.C.A. § 40-35-107(a)(1).
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sentence of 21 years. The court based its imposition of consecutive sentencing on the
finding that the defendant had an extensive criminal record. See T.C.A. § 40-35-
115(b)(2). The court also found that the defendant had “zero potential for rehabiliation,”
that confinement was necessary to protect society, and that measures less restrictive than
confinement have frequently failed. See T.C.A. § 40-35-103.

Because the trial court considered all relevant principles associated with
sentencing, no error attends the imposition of this within-range sentence.

III. Ineffective Assistance of Counsel

Finally, the defendant reiterates his claim of ineffective assistance of
counsel, claiming that trial counsel performed deficiently by failing to pursue DNA and
fingerprint analysis of the knife; to seek the recusal of the prosecutor; to notify the
defendant that Ms. Pope would be testifying against him; to request a new jury pool; to
confer with and discuss defense strategies with the defendant; to seek a mistrial on the
basis that jurors had seen the defendant seated outside of a prisoner holding cell; to use
photographs of the defendant’s injuries; and to provide the defendant with copies of his
discovery, specifically his arrest warrant. The State contends that the court did not err by
denying relief.

We must first address the trial court’s treatment of this issue as one seeking
post-conviction relief. Although prudence dictates that claims of ineffective assistance of
counsel should be raised in a petition for post-conviction relief, see State v. Mosley, 200
S.W.3d 624, 629 (Tenn. Crim. App. 2005) (“The better practice is to make an ineffective
assistance of counsel claim in a post-conviction proceeding.”), nothing prevents a
defendant from raising such a claim in the post-trial proceedings or on direct appeal.
“This court has consistently ‘warned defendants and their counsel of the dangers of
raising the issue of ineffective assistance of trial counsel on direct appeal because of the
significant . . . amount of development and factfinding such an issue entails.’” Id. at 628-
29 (quoting Kendricks v. State, 13 S.W.3d 401, 405 (Tenn. Crim. App. 1999)). Indeed,
both the trial court and appellate counsel in the instant case strongly cautioned the
defendant against his choice to pursue ineffectiveness claims at such an early stage in the
proceedings. However, aside from his claims of trial counsel’s ineffectiveness, nothing
in the defendant’s “Motion for Appointment of Counsel” suggests that it was intended to
be a petition for post-conviction relief. To be sure, the term “post-conviction” or the like
is not to be found within the defendant’s five-page handwritten motion.

Under the Post-Conviction Procedure Act, petitions for post-conviction
relief must comply with certain statutory rules:

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 (a) A post-conviction proceeding is commenced by filing,
with the clerk of the court in which the conviction occurred, a
written petition naming the State as the respondent. . . .

(b) The petitioner shall provide all information required by
this section. Petitions which are incomplete shall be filed by
the clerk, but shall be completed as set forth in an order
entered in accordance with § 40-30-106(d).

(c) The petition for post-conviction relief shall be limited to
the assertion of claims for relief from the judgment or
judgments entered in a single trial or proceeding. . . .

(d) The petitioner shall include all claims known to the
petitioner for granting post-conviction relief and shall verify
under oath that all the claims are included.

(e) The petitioner shall include allegations of fact supporting
each claim for relief set forth in the petition and allegations of
fact explaining why each ground for relief was not previously
presented in any earlier proceeding. The petition and any
amended petition shall be verified under oath. Affidavits,
records or other evidence available to the petitioner
supporting the allegations of the petition may be attached to
it.

(f) The petitioner shall provide the name of any attorney
licensed to practice law who drafts or has given assistance or
advice regarding drafting the petition for post-conviction
relief.

(g) Amendments to the petition shall conform substantially to
the form for original petitions, except that matters alleged in
the original petition need not be repeated.

Id. § 40-30-104. A review of the defendant’s “Motion for Appointment of Counsel”
reveals that the motion did not comply with these requirements in multiple ways: the
caption of the motion did not list the State as the respondent, see § 40-30-104(a); the
judgments were not entered by the trial court until April 15, 2016, some four months
after the filing of the defendant’s motion, see § 40-30-104(c); the defendant’s motion did
not contain a verification under oath, see § 40-30-104(d), (e); appointed counsel filed a
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“Motion for New Trial” listing all of the defendant’s previously-claimed grounds of
ineffective assistance of counsel, but counsel never filed an amended petition, see § 40-
30-104(g); and finally, the trial court never ordered the defendant to file an amended
petition pursuant to the requirement of Code section 40-30-106(d), see § 40-30-104(b).
In short, the defendant’s motion seeking new counsel and raising claims of
ineffectiveness was simply that, and the trial court’s decision to treat the motion as a
petition for post-conviction relief was in error.

That the trial court treated the defendant’s motion as a petition for post-
conviction relief is particularly significant because it would have been his one and only
bite at the proverbial post-conviction apple. “In no event may more than one (1) petition
for post-conviction relief be filed attacking a single judgment. If a prior petition has been
filed which was resolved on the merits by a court of competent jurisdiction, any second
or subsequent petition shall be summarily dismissed.” T.C.A. § 40-30-102(c). Because
we find that the underlying motion was not a petition for post-conviction relief, the
defendant is still free to pursue post-conviction relief pursuant to the terms of the Post-
Conviction Procedure Act, with the caveat that he has now exhausted any and all claims
relative to the ineffectiveness of counsel, as will be discussed more fully herein.

Before a defendant will be granted relief on the basis of a claim of
ineffective assistance of counsel, the record must affirmatively establish, via facts clearly
and convincingly established by the defendant, that “the advice given, or the services
rendered by the attorney, are [not] within the range of competence demanded of attorneys
in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and that
counsel’s deficient performance “actually had an adverse effect on the defense,”
Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, the defendant “must
show that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at
694. Should the defendant fail to establish either deficient performance or prejudice, he
is not entitled to relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).
Indeed, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697.

When considering a claim of ineffective assistance of counsel, a reviewing
court “begins with the strong presumption that counsel provided adequate assistance and
used reasonable professional judgment to make all significant decisions,” Kendrick v.
State, 454 S.W.3d 450, 458 (Tenn. 2015) (citing Strickland, 466 U.S. at 689), and “[t]he
defendant bears the burden of overcoming this presumption,” id. (citations omitted). We
will not grant the defendant the benefit of hindsight, second-guess a reasonably based
trial strategy, or provide relief on the basis of a sound, but unsuccessful, tactical decision
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made during the course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn.
Crim. App. 1994). Such deference to the tactical decisions of counsel, however, applies
only if the choices are made after adequate preparation for the case. Cooper v. State, 847
S.W.2d 521, 528 (Tenn. Crim. App. 1992).

A claim of ineffective assistance of counsel is a mixed question of law and
fact. Kendrick, 454 S.W.3d at 457; Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010);
State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453,
461 (Tenn. 1999). When reviewing the application of law to the lower court’s factual
findings, our review is de novo, and the trial court’s conclusions of law are given no
presumption of correctness. Kendrick, 454 S.W.3d at 457; Fields, 40 S.W.3d at 457-58;
see also State v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

In the instant case, the defendant, after reciting the applicable law for the
review of ineffectiveness claims, merely listed his multiple claims of ineffective
assistance of counsel in a 15-line, single sentence that was devoid of argument, citation to
authorities, or appropriate references to the record. “Issues which are not supported by
argument, citation to authorities, or appropriate references to the record will be treated as
waived in this court.” Tenn. R. Ct. Crim. App. 10(b); see also Tenn. R. App. P. 27(a)(7)
(stating that the appellant’s brief must contain an argument “setting forth . . . the
contentions of the appellant with respect to the issues presented, and the reasons therefor .
. . with citations to the authorities . . . relied on”). Because the defendant failed to comply
with these rules, he has waived our consideration of his ineffective assistance claims.

In any event, the record supports the ruling of the trial court. The lower
court explicitly accredited the testimony of trial counsel and explicitly discredited that of
the defendant. As such, we hold that the defendant has failed to prove by clear and
convincing evidence any facts that demonstrate that trial counsel’s representation was
deficient or prejudicial.

Conclusion

Based upon the foregoing analysis, we affirm the judgments of the trial
court.

_________________________________
JAMES CURWOOD WITT, JR., JUDGE

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