Yasin Solomon Hawkins v. State of Tennessee ( 2022 )

03/04/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs February 9, 2022
YASIN SOLOMON HAWKINS v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2015-C-2127 Mark J. Fishburn, Judge
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No. M2021-00536-CCA-R3-PC
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The Petitioner, Yasin Solomon Hawkins, appeals the Davidson County Criminal Court’s
denial of his petition for post-conviction relief, arguing that he received ineffective
assistance of counsel and that his waiver of the right to a jury trial was not knowing,
intelligent, and voluntary. After review, we affirm the post-conviction court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which ROBERT H.
MONTGOMERY, JR., and J. ROSS DYER, JJ., joined.
David L. Hudson, Jr., Nashville, Tennessee, for the Appellant, Yasin Solomon Hawkins.
Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Assistant
Attorney General; Glenn Funk, District Attorney General; and, Janice Norman, Assistant
District Attorney General, for the Appellee, State of Tennessee.
OPINION
In 2015, the Petitioner was indicted for one count of aggravated robbery and one
count of aggravated assault. Following the appointment of counsel, the Petitioner filed a
motion to suppress the identifications made during a photographic lineup and a motion to
suppress his confession, which were both denied. The Petitioner then waived his right to
a jury trial by signing a written waiver, pursuant to Tennessee Rule of Criminal Procedure
23, and proceeded to a bench trial. The proof at this bench trial showed that the Petitioner
pointed a gun at Radhika Patel, an assistant manager at a hotel on Old Hickory Boulevard
in Davidson County, and demanded the money in the hotel’s cash drawer and that Patel
gave him all of the money inside. State v. Yasin Solomon Hawkins, No. M2017-02439-
CCA-R3-CD, 2018 WL 4520949, at *3 (Tenn. Crim. App. Sept. 20, 2018), perm. app.
denied (Tenn. Jan. 16, 2019). The Petitioner also pointed his gun at Atul Kumar, the
manager of the hotel, before exiting the hotel with the cash and driving away. Id. Officer
Bryan Murphy testified that he responded to a call about a suspicious person at an
apartment complex and encountered the Petitioner, who had recognizable tattoos and was
wearing a distinctive Hawaiian shirt, asleep in a breezeway of the complex. Id. The
Petitioner provided his name to the officer, and when the apartment complex elected not to
prosecute him for trespass, the Petitioner left. Id. Officer Murphy learned later that day
that an individual, who was wearing clothing matching what the Petitioner had been
wearing, had committed a hotel robbery. Id. After watching the surveillance footage
related to this robbery, Officer Murphy confirmed that the perpetrator in the footage was
the Petitioner. Id. Detective Sam Tetterton testified that he later interviewed the Petitioner,
who confessed to robbing the hotel at issue as well as two other hotels. Id. at *1, *3. Both
the surveillance video of the robbery and the recording of the Petitioner’s confession were
admitted into evidence. At the conclusion of the bench trial, the trial court found the
Petitioner guilty beyond a reasonable doubt of the aggravated robbery charge but acquitted
the Petitioner of the aggravated assault charge. Id. The trial court later sentenced the
Petitioner as a career offender to thirty years at one hundred percent in the Tennessee
Department of Correction. Id.
On direct appeal, the Petitioner presented only one issue, whether the trial court
erred in denying his motion to suppress his statement to police. Id. at *3-4. This court,
concluding that the trial court had properly denied the motion to suppress, affirmed the
judgment of the trial court, and the Tennessee Supreme Court denied permission to appeal.
Id. at *4.
The Petitioner then filed a petition for writ of error coram nobis, alleging that his
arrests warrants were newly discovered evidence and that they were improperly executed
and forged, and this court affirmed the trial court’s summary dismissal of this petition.
Yasin Solomon Hawkins v. State, No. M2018-02155-CCA-R3-ECN, 2019 WL 2774308,
at *3-4 (Tenn. Crim. App. July 2, 2019), perm. app. denied (Tenn. Jan. 15, 2020).
Thereafter, the Petitioner timely filed a pro se petition for post-conviction relief,
alleging, among other things, that he received ineffective assistance of counsel. Following
the appointment of post-conviction counsel, the Petitioner filed an amended petition,
arguing in pertinent part, that counsel provided ineffective assistance in failing to explain
the ramifications of waiving his right to a jury trial, in failing to investigate and prepare a
defense, in failing to prepare for the bench trial, and in failing to consult with the Petitioner
during the appeals process. The Petitioner additionally asserted that the cumulative effect
of counsel’s errors deprived him of the effective assistance of counsel.
At the post-conviction hearing, the Petitioner testified that when he asked counsel
if he thought a bench trial was a good idea, counsel replied, “[N]obody kn[ew] the law
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better than the Judge.” The Petitioner asserted that counsel never explained his
constitutionally protected right to a jury trial, the potential advantages of a jury trial, the
benefit of being judged by a jury of one’s peers, the requirement that jurors reach a
unanimous verdict, or the importance of a jury trial in cases involving cross-racial
identification. He said counsel also never explained a hung jury and never disclosed that
counsel had received hung juries in previous cases. The Petitioner claimed that if counsel
had explained these things to him, he would not have waived his right to a jury trial. He
stated that his decision to have a bench trial was not the product of a free and deliberate
choice and that he had waived his right to a jury trial without adequate information.
The Petitioner also maintained that counsel failed to prepare him for the bench trial.
He said that counsel never explained anything to him concerning the bench trial and that
counsel’s only strategy was to hope that the two witnesses for the State failed to appear at
his trial.
The Petitioner additionally claimed that counsel never explained the appellate
process to him and never discussed any potential grounds for his appeal. He said that
counsel never communicated with him during the appellate process and that he was forced
to write to the appeals court in order to obtain a copy of his brief. As a result, he felt like
he had no attorney during the appellate process.
The Petitioner stated that counsel encouraged him to accept the State’s plea offer,
but when he refused this offer, counsel stopped communicating with him. He asserted that
he was not actively informed about the defense of his case.
The Petitioner acknowledged that there was a surveillance video of the aggravated
robbery for which he was charged. He also admitted that an officer was able to identify
him as the person with the gun who robbed the hotel on this video and that the two
witnesses to the crime also identified him as the perpetrator. He said the officer believed
he was the perpetrator because he was wearing the same Hawaiian shirt that the perpetrator
wore on the surveillance video.
The Petitioner said that counsel was “a good dude” who “just made a bad decision”
by encouraging him to have a bench trial when he was a career criminal. He said counsel
conveyed the State’s plea offer to him but then told him that the State’s witnesses were not
going to appear at trial because these witnesses had already failed to appear for the
preliminary hearing and pre-trial motions. The Petitioner claimed that he “kept turning
down the [State’s] offer” because counsel assured him that the witnesses would not show
up at trial, and if these witnesses failed to testify against him, there was a good possibility
that his charges would be dismissed. He said counsel never told him he had a right to
twelve jurors who would not be advised about his criminal history so long as he chose not
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to testify. Although the Petitioner insisted he was not guilty of the aggravated robbery
offense, he said that if he had it to do over again, he would have accepted the State’s offer
of fifteen years rather than “get[ting] slammed with thirty years.” When asked if he
understood that a grant of relief would result in a new trial rather than a fifteen-year offer,
the Petitioner replied that he knew that his relief would be a new trial “with twelve jurors.”
When the Petitioner was asked what would happen if the twelve jurors watched the
surveillance video from the aggravated robbery and determined that the perpetrator in the
video looked exactly like him, the Petitioner stated, “I can live with it because I had a right
to twelve jurors. I’d rather have twelve jurors convict me than a Judge who knows
everything about me.”
The Petitioner admitted that he had confessed to the police but claimed that he did
not understand what he was doing at the time because he was under the influence of both
cocaine and alcohol, which he told the officers at the time of his interview. The Petitioner
said that when the motion to suppress his confession and the motion to suppress the
identifications were denied, counsel told him that he would receive a sentence of thirty
years if convicted at trial. He said that when he signed the waiver of his right to a jury trial,
he understood only that the trial judge would determine his guilt or innocence at a bench
trial.
The Petitioner claimed that he never read the waiver of a jury trial before he signed
it and that neither counsel nor the trial court explained the rights he was abandoning by
signing the waiver. He said he signed the waiver because counsel had advised him to do
so. In response to questioning from the court, the Petitioner said that counsel began
representing him six months before his bench trial, that counsel met with him four times
prior to his trial, and that counsel never discussed the advantages and disadvantages of a
jury trial and bench trial. He claimed that he did not understand he had a right to a jury
trial and that when he signed the waiver, “it stripped him of everything” because he “signed
over his life.”
Counsel testified that he had practiced law since 2012 and that his practice was
almost entirely comprised of criminal cases. He stated that he had represented clients
charged with minor criminal offenses up to first degree murder and that he had taken many
of these cases to trial. He stressed that although he and the Petitioner got along well, the
evidence against the Petitioner was overwhelming. Counsel noted that the officer who
encountered the Petitioner became aware of the robbery and realized that the Petitioner was
wearing the same distinctive Hawaiian shirt that the perpetrator had worn in the
surveillance video of the robbery of the hotel, which immediately made the Petitioner a
suspect. He said that two eyewitnesses also identified the Petitioner as the perpetrator.
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Counsel knew that the Petitioner’s identification as the perpetrator was the most
damaging issue, which was why he filed a motion to suppress the witnesses’ identifications
based on a procedural error the officer made when presenting the lineup to these witnesses.
He noted that the only address the State had for these witnesses was the hotel’s address,
and he asked his investigator to see whether the State would be able to locate these
witnesses. In preparation for the suppression hearing regarding the identifications, counsel
also sent a subpoena to the hotel. Although the witnesses failed to appear at the suppression
hearing, the trial court nevertheless denied the motion to suppress. Counsel stated that
following the denial of this motion, he visited the Petitioner in jail eleven times, not
including the times he talked with the Petitioner at his hearing dates.
Counsel said he presented the State’s offer of fifteen years to the Petitioner. He
described this offer as “soft,” meaning that he thought he could convince the prosecutor to
agree to a slightly shorter sentence, perhaps around twelve years, although the Petitioner
would have to serve any agreed upon sentence at one hundred percent. Counsel stated that
the Petitioner was not interested in entering a guilty plea for a sentence to serve because
the Petitioner had already served substantial time on an unrelated conviction and was
convinced that the witnesses would not appear at his trial. He noted that the Petitioner had
lined up a job at a car detailing business, and he asked the State about the possibility of a
Community Corrections sentence for the Petitioner. Counsel said the State had great
leverage in this case because it had the Petitioner, who had an extensive criminal record,
on the surveillance video committing the aggravated robbery. He stated that the Petitioner
was a career offender whose criminal history included prior convictions for second degree
murder, especially aggravated robbery, attempted second degree murder, and four counts
of aggravated assault. Consequently, the State was not interested in allowing the Petitioner
to receive a Community Corrections sentence.
Counsel stated that he wrote a letter to the Petitioner, stating that he had received a
fifteen-year offer at one hundred percent from the State and that he believed the Petitioner
should accept it. This letter, which was admitted into evidence, referenced the trial court’s
denial of the motion to suppress the eyewitnesses’ identifications of the Petitioner. In this
letter, counsel predicted what would happen if the Petitioner rejected the State’s offer and
proceeded to a jury trial, stating:
[H]ere’s how the trial will go:
They will play that [surveillance] video for the jurors, both hotel
workers will describe what happened, they will say there was a gun, they will
say it was you, they will say you took money.
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There’s not a whole lot I can bring up to convince a jury that it either
wasn’t you or that they weren’t in fear or that money wasn’t taken or that
they didn’t think it was a gun.
We have to be real with ourselves. I’ve had over 20 trials in just the
past 4 years. The ones that are on video all end the same. You know these
past 6 months I’ve been all on board with everything we can think of to help.
You know I come out to see you, I’ve tried some motions, tried the
expungement, called the hotel to see if [the hotel’s assistant manager]
R[adhika Patel] still exists. . . . I’m going to be as real with you as I possibly
can. We cannot win this case at trial.
...
I’ll ride or die with whatever you decide and I’ll throw everything at
them if we have to have a trial. . . . As someone who cares about you I am
going to tell you to accept this 15. It would be wrong of me to lie to you and
pump you up, tell just the things you want to hear . . . then go out there and
see you get . . . 30+ [years]. It’s hard for me to tell you point blank to take
15 years but it’ll be even harder for me to sit there at a sentencing hearing
when the Judge gives you so much time that you don’t ever get out.
Make the choice that guarantees that you get out someday.
Counsel stated that when he visited the Petitioner to discuss the State’s fifteen-year
offer, the Petitioner told him that the hotel had been demolished, and they discussed issues
regarding subpoenaing the witnesses. Counsel said, “[The Petitioner] just had it in his
mind [that] the hotel is gone, [the State’s witnesses] are not going to know to come to
court.” Counsel confirmed that the hotel had been demolished, and the Petitioner refused
to accept the State’s offer because he was convinced that the witnesses were not going
appear in court to testify against him.
Counsel said one witness, Atul Kumar, testified at the preliminary hearing, but the
other witness, Radhika Patel, did not testify at that hearing. He noted that the Petitioner’s
case was set for a jury trial in late February 2017 and that the proof against the Petitioner
was substantial. Consequently, counsel had his investigator try to find the State’s witnesses
to see if they would actually appear at trial. He agreed with the Petitioner’s assertion that
the defense had a “heavy reliance” on witness unavailability. Counsel readily
acknowledged that charges are not automatically dismissed simply because a witness fails
to appear in court; however, he said he may not have fully explained this issue to the
Petitioner. He stated that “[i]f somebody has died, that would make a difference” and that
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“if somebody is local and just doesn’t want to cooperate with their subpoena, that may also
make a difference [in a defendant’s case].” Counsel said that he encouraged the Petitioner
to accept the State’s offer, although he and the Petitioner did discuss the possibility of
“witnesses not coming.” Counsel acknowledged that there were some indications that
“maybe [the witnesses] wouldn’t be available or maybe they wouldn’t make themselves .
. . present in court.” He asserted that Atul Kumar ultimately did not appear at trial to testify
against the Petitioner.
Counsel said that from September 2016 to January 2017, he prepared for trial. His
investigator confirmed that Radhika Patel was living in another state, which boded well for
the Petitioner. The investigator also discovered that although Atul Kumar had just had
shoulder surgery and did not want to testify, it was clear the State would be able to find
Kumar. When counsel told the Petitioner that the State was in contact with Atul Kumar,
the Petitioner was not happy.
Counsel said that the State later sought a continuance of the Petitioner’s jury trial
based on Kumar’s surgery. Although the Petitioner’s confession to law enforcement had
initially been misplaced, the State found the Petitioner’s confession just before the State
requested a continuance. Because the State was in contact with Kumar and had found the
Petitioner’s confession, counsel did not oppose the State’s request for a continuance.
Counsel said that when he discovered that witness Radhika Patel was living in North
Carolina, he informed the Petitioner that the State might have some trouble getting Patel to
testify given that she was out of state. Counsel explained that at the time of the Petitioner’s
trial, he had successfully gotten charges dismissed in one or two other cases in Davidson
County. He noted that “if witnesses are not present, a bench trial seems to be an easier
mechanism for getting your case dismissed than a jury trial.”
Counsel stated that he talked to the Petitioner about a jury trial because the Petitioner
nearly had a jury trial in February 2017. He said that he routinely talked to his clients about
what a jury trial is, where to sit in the courtroom, voir dire, the calling of witnesses for both
sides, and the right not to testify. Counsel said that he met with the Petitioner in jail on
February 1, 2017, and February 10, 2017, and that he “might have” talked to the Petitioner
about those details related to jury trials because those two meetings were approximately
two to three weeks prior to the Petitioner’s jury trial date.
He said that after the Petitioner’s jury trial was continued, he received the copy of
the Petitioner’s confession, wherein the Petitioner stated that he was “high” on cocaine and
then gave “a little too much detail about this robbery.” He noted that although he filed a
motion to suppress the Petitioner’s confession, this motion was denied. Counsel recalled
that on the date the court denied the motion to suppress the Petitioner’s confession, the
Petitioner requested a bench trial.
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When asked what led the Petitioner to waive his jury trial and have a bench trial,
counsel said that the Petitioner continued to believe that the witnesses would not appear at
trial, even though counsel told him that he expected the witnesses to testify, and the
Petitioner knew that a bench trial was a better mechanism for getting charges dismissed.
Counsel said that “you always have to assume that [witnesses] are not coming,” although
he recognized that this “doesn’t happen as much in . . . criminal court trials as it does in
General Sessions.” However, counsel asserted, “I never would have relied on [the
Petitioner] saying somebody is not coming.” He added, “I would have prepared for [the
State’s witnesses] to come, and did[.]” Counsel said that two or three days prior to the
bench trial, he received notice that Radhika Patel might be coming to trial. He informed
the Petitioner of the likelihood of Patel’s presence the day before the bench trial, although
the Petitioner continued to insist that Patel would not show up for trial. Counsel said he
wanted the Petitioner to be prepared for Patel to testify against him, and he talked to the
Petitioner about his defense strategy if Patel or Kumar appeared at trial.
When counsel saw Patel the first day of the bench trial, he informed the Petitioner
of Patel’s presence and then suggested asking the State about a potential plea agreement or
requesting a continuance, but the Petitioner refused both of these options. Counsel said
that during the trial, the Petitioner repeatedly told him that the State had hired an actress to
play Patel. He said there was never a time during the case where the Petitioner would have
agreed to enter a guilty plea for a sentence to serve.
Counsel acknowledged that his conversations with the Petitioner were “less
frequent” after the Petitioner’s conviction because following a conviction the record
“controls everything.” He said he had “a policy” that if there is a disagreement regarding
issues for appeal, he decides the issues because these are legal issues that most defendants
do not understand. He said he routinely sends the appellate brief to his clients, but he did
not specifically remember sending one to the Petitioner in this case. He agreed that he did
not video conference or visit the Petitioner during the appellate process and said that at
most “it would have been a few letters.” Counsel acknowledged that it was during the
appeal that his relationship with the Petitioner went sour, although he believed this was
because the Petitioner realized he would be spending the next thirty years of his life in
prison, not because there was any issue with his representation of the Petitioner.
Counsel acknowledged that there was a “heavy connection” between the decision
to have a bench trial and witness unavailability. He also said that the Petitioner had wanted
to have his trial fast, and a bench trial was a “quicker way to have your day in court.” He
admitted that the idea for a bench trial initially came from counsel because the Petitioner
would not have been familiar with that strategy. Counsel noted that someone outside the
jail had informed the Petitioner that the hotel had been demolished, which had been proven
to be true. Because the Petitioner was so certain that the witnesses would not appear at
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trial, counsel suggested a bench trial because it would “not only be faster, but maybe more
likely to be dismissed . . . if [the witnesses] don’t come.”
Counsel said he did not present any witnesses in the Petitioner’s defense at trial but
asserted that the Petitioner’s case was not a “witness-heavy case.” He stated, looking back,
there was no one he wished he would have talked to in order to prepare for the Petitioner’s
trial. Counsel asserted that he pursued a theory of misidentification at trial, in light of the
less than clear surveillance video depicting the perpetrator. Counsel said that the only thing
he would have done differently was more forcefully argue for the Petitioner to to accept an
offer from the State, if such an offer was possible, once Radhika Patel appeared to testify
at trial.
Following this hearing, the post-conviction court entered an order denying post-
conviction relief. Regarding the claim that counsel failed to inform the Petitioner of the
consequences of waiving his right to a jury trial, the post-conviction made the following
conclusions:
Petitioner signed a written waiver as per Rule 23 [of the Tennessee
Rules of Criminal Procedure]. The testimony from both Petitioner and trial
counsel was that the decision to waive the right to a jury trial was a strategic
decision made in hopes of a dismissal if the witnesses did not show for the
trial. The reasoning offered at the hearing for this strategic move was that
trial counsel had pursued it successfully in the past. Although the court
questions the justification for the waiver, it is highly unlikely that the strategy
affected the ultimate outcome.
The evidence of the Petitioner’s guilt was overwhelming. There was
the identification of Petitioner by the officer who had encountered him earlier
in the day, the video of the robbery on surveillance video, two eyewitnesses
who identified Petitioner as the perpetrator, and Petitioner’s own statement
given to the police in which he confesses to this and other crimes. The
Petitioner has failed to submit any evidence that he was prejudiced by the
decision to waive a trial by jury, nor has there been any evidence that the
results would have been different had they submitted this case to a jury.
Indeed, Petitioner’s own testimony shows that he believes a jury trial would
not have turned out differently as he testified that . . . if he “could do it all
over again,” he would have taken the State’s offer of 15 years to serve.
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Regarding the claim that counsel failed to investigate and properly prepare for the
bench trial, the post-conviction court held:
Petitioner asserts that trial counsel’s entire strategy rested upon asking for a
non-jury trial in the hopes that the witnesses would not appear. He claims
that trial counsel abdicated his constitutional duty to afford petitioner the
effective assistance of counsel when this so-called strategy failed. The
record and the evidence contradict this assertion.
As soon as trial counsel was appointed, he filed a motion to suppress
the photographic line-up in which Petitioner was identified by two witnesses.
He dispatched an investigator to try to locate these same witnesses to
ascertain if they were going to be available at trial. Trial counsel also filed a
motion to suppress Petitioner’s statement to the police as soon as the
statement came to light. Trial counsel met with Petitioner numerous times,
and he explained the evidence against him, his exposure, and they frankly
discussed the fact that a dismissal due to witness unavailability would be
Petitioner’s best chance, if not his only chance, in this case. Trial counsel’s
letter to Petitioner reflects trial counsel had a comprehensive knowledge of
the strengths and weaknesses of the case, the extent of the evidence
inculpating Petitioner, the likely outcome based on this evidence, and his
awareness of the risk of Petitioner going to trial versus accepting the plea
offer. As noted by trial counsel[,] “I’ll ride or die with whatever you decide
and I’ll throw everything at them if we have to have a trial.” This is not an
abdication of his constitutional duties to his client, but a reaffirmation of
the[m] despite his pretrial strategy failing to achieve the desired results. This
letter was sent only after trial counsel’s primary defense strategy failed to
achieve the desired results. This is not an abdication of his constitutional
duties to the Petitioner, but a reaffirmation of his commitment to them despite
pretrial setbacks. The Petitioner has failed to show that trial counsel’s
defense strategy fell below the level of competence required of attorneys in
criminal cases.
Lastly, as to the claim that counsel failed to adequately communicate with the
Petitioner regarding the appeal, the post-conviction made the following conclusions:
At the hearing, trial counsel testified that he did not generally consult with
defendants in depth regarding issues for appeal as he felt these issues were
legal in nature, not factual. Although it is always the better policy to
communicate all efforts expended on behalf of a criminal client even if for
informational purposes only, Petitioner offered no evidence as to what issues
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trial counsel failed to raise in his appeal, and he has not demonstrated how
he was prejudiced by trial counsel not consulting with him regarding these
issues.
Following entry of this order, the Petitioner timely filed a notice of appeal.
ANALYSIS
The Petitioner argues that he received ineffective assistance of counsel.
Specifically, he claims that counsel provided ineffective assistance in failing to explain the
advantages of a jury trial, in failing to adequately prepare for trial, and in failing to
communicate with him during the appellate process. The Petitioner also argues that the
cumulative effect of all of counsel’s errors deprived him of effective assistance of counsel.
The State responds that the post-conviction court properly denied the Petitioner relief. We
agree with the State.
Post-conviction relief is only warranted when a petitioner establishes that his or her
conviction or sentence is void or voidable because of an abridgement of a constitutional
right. Tenn. Code Ann. § 40-30-103. A post-conviction petitioner has the burden of
proving the factual allegations by clear and convincing evidence. Id. § 40-30-110(f); see
Tenn. Sup. Ct. R. 28, § 8(D)(1); Nesbit v. State, 452 S.W.3d 779, 786 (Tenn. 2014).
Evidence is considered clear and convincing when there is no serious or substantial doubt
about the accuracy of the conclusions drawn from it. Lane v. State, 316 S.W.3d 555, 562
(Tenn. 2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009); Hicks v. State, 983
S.W.2d 240, 245 (Tenn. Crim. App. 1998).
A claim for post-conviction relief based on alleged ineffective assistance of counsel
presents mixed questions of law and fact. Mobley v. State, 397 S.W.3d 70, 80 (Tenn. 2013)
(citing Calvert v. State, 342 S.W.3d 477, 485 (Tenn. 2011)). A post-conviction court’s
findings of fact are conclusive on appeal unless the evidence in the record preponderates
against them. Calvert, 342 S.W.3d at 485 (citing Grindstaff, 297 S.W.3d at 216; State v.
Burns, 6 S.W.3d 453, 461 (Tenn. 1999)). “Accordingly, we generally defer to a post-
conviction court’s findings with respect to witness credibility, the weight and value of
witness testimony, and the resolution of factual issues presented by the evidence.” Mobley,
397 S.W.3d at 80 (citing Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999)). However,
we review a post-conviction court’s application of the law to its factual findings de novo
without a presumption of correctness. Id. (citing Grindstaff, 297 S.W.3d at 216; Finch v.
State, 226 S.W.3d 307, 315 (Tenn. 2007); Vaughn v. State, 202 S.W.3d 106, 115 (Tenn.
2006)).
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The right to effective assistance of counsel is protected by both the United States
Constitution and the Tennessee Constitution. U.S. Const. amend. VI; Tenn. Const. art. I,
§ 9. In order to prevail on an ineffective assistance of counsel claim, the petitioner must
establish that (1) his lawyer’s performance was deficient and (2) this deficient performance
prejudiced the defense. Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Strickland v.
Washington, 466 U.S. 668, 687 (1984). A petitioner successfully demonstrates deficient
performance when the petitioner establishes that his attorney’s conduct fell “below an
objective standard of reasonableness under prevailing professional norms.” Goad, 938
S.W.2d at 369 (citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975)). Prejudice arising therefrom is demonstrated once the petitioner establishes
“‘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.’” Id. at 370 (quoting Strickland, 466 U.S. at 694).
“Because a petitioner must establish both prongs of the test, a failure to prove either
deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.” Id.In assessing an attorney’s performance, we “must be highly deferential and should
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Burns, 6 S.W.3d at 462 (citing Strickland, 466 U.S.
at 689). In addition, we must avoid the “distorting effects of hindsight” and must “judge
the reasonableness of counsel’s challenged conduct on the facts of the particular case,
viewed as of the time of counsel’s conduct.” Strickland, 466 U.S. at 689-90. “No particular
set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of
circumstances faced by defense counsel or the range of legitimate decisions regarding how
best to represent a criminal defendant.” Id. at 688-89. However, “‘deference to matters of
strategy and tactical choices applies only if the choices are informed ones based upon
adequate preparation.’” House v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (quoting Goad,
938 S.W.2d at 369).
First, the Petitioner contends that counsel provided ineffective assistance in failing
to explain the importance of a jury trial. Although he admits he signed the waiver form so
he could proceed to a bench trial, he claims counsel “did not explain the advantages of trial
by jury” and “simply urged [the Petitioner] to waive his rights so he could pursue the
bizarre strategy of hoping that the alleged victims in the case would not show up to court.”
The Petitioner asserts that counsel never informed him that he had a constitutional right to
a jury trial, that a jury is required to find a defendant guilty by a unanimous vote, that a key
part of a jury trial is selecting a jury, or that counsel had previously represented defendants
in criminal cases in which there was a hung jury. He also asserts that counsel’s error in
recommending a bench trial was “compounded by the fact that the right to a jury trial
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becomes even more important and essential in a case that involves cross-racial
identification (or misidentification).”
At the post-conviction hearing, the Petitioner testified that counsel never explained
the potential advantages of a jury trial and that if counsel had done so, he would not have
waived his right to a jury trial. The Petitioner claimed that his decision to have a bench
trial was not the product of a free and deliberate choice and that he waived his right to a
jury without adequate information. The Petitioner insisted that he “kept turning down the
[State’s] offer” because counsel assured him that the witnesses would not show up at trial,
and that if the witnesses failed to show and testify against him, there was a good possibility
that his charges would be dismissed. On the other hand, counsel testified that he talked to
the Petitioner about a jury trial because the Petitioner nearly had a jury trial in February
2017. Counsel said that he routinely talks to his clients about what a jury trial is, where to
sit in the courtroom, voir dire, the calling of witnesses for both sides, and the right not to
testify. Counsel explained that the two witnesses in this case had failed to testify at the
preliminary hearing and pre-trial hearings and that one witness was recovering from
surgery and the other witness had moved to North Carolina, which made it more likely that
these witnesses would not appear at the Petitioner’s trial. Counsel said he suggested a
bench trial because it would “not only be faster, but maybe more likely to be dismissed . .
. if [the witnesses] don’t come.” He claimed that the Petitioner refused to accept the State’s
offer and waive his right to a jury trial because the Petitioner was convinced that the
witnesses were not going to appear in court to testify against him, even though counsel
strongly urged him to accept the State’s offer and told him that he expected the witnesses
to testify against him.
The post-conviction court recognized that the Petitioner had signed a written waiver
of his right to a jury trial and that the testimony from both Petitioner and trial counsel
showed that “the decision to waive the right to a jury trial was a strategic decision made in
hopes of a dismissal if the witnesses did not show for the trial.” Although the post-
conviction court “question[ed] the justification for the waiver,” it held that it was “highly
unlikely that the strategy affected the ultimate outcome” in light of the overwhelming
evidence of the Petitioner’s guilt, which included the officer’s identification of the
Petitioner, the surveillance video of the robbery, the eyewitnesses’ identifications of the
Petitioner as the perpetrator, and the Petitioner’s confession during his interview with
police. The post-conviction court held that the Petitioner had failed to present any evidence
that he was prejudiced by the decision to waive a trial by jury or that the results would have
been different had his case been submitted to a jury. In addition, the court recognized that
the Petitioner essentially admitted a jury trial would not have resulted in a different
outcome for him because the Petitioner testified that if he “could do it all over again,” he
would have taken the State’s offer of 15 years, not that he would have chosen a jury trial
over a bench trial. The record fully supports the post-conviction court’s conclusion that
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the Petitioner failed to show he was prejudiced by counsel’s performance on this issue,
particularly given the overwhelming evidence of the Petitioner’s guilt. Because the
Petitioner has failed to show that counsel provided ineffective assistance on this issue, he
is not entitled to relief.
Alternatively, the Petitioner appears to argue, as a stand-alone claim, that his waiver
of the right to a jury trial was not intelligent, knowing, and voluntary. We recognize that
this particular issue, which is separate from the related ineffective assistance of counsel
issue addressed above, was never included in the Petitioner’s original or amended petition
for post-conviction relief and was never decided by the post-conviction court.
Accordingly, this issue is waived, and this court is precluded from considering this issue.
Holland v. State, 610 S.W.3d 450, 458 (Tenn. 2020) (“Tennessee appellate courts may only
consider issues that were not formally raised in the post-conviction petition if the issue was
argued at the post-conviction hearing and decided by the post-conviction court without
objection.” (emphasis added)); Walsh v. State, 166 S.W.3d 641, 645 (Tenn. 2005) (“Issues
not addressed in the post-conviction court will generally not be addressed on appeal.”);
Cauthern v. State, 145 S.W.3d 571, 599 (Tenn. Crim. App. 2004) (“[A]n issue raised for
the first time on appeal is waived.”).
Second, the Petitioner argues that counsel provided ineffective assistance in failing
to adequately prepare for the bench trial. He claims that counsel’s strategy was based on
a mere hope that the State’s witnesses would fail to appear at trial and that counsel made
“little to no preparation” for trial aside from this misguided strategy. The Petitioner
acknowledges that counsel filed two suppression motions and encouraged him to accept a
plea deal; however, he asserts that the “breakdown of the adversarial process” occurred
when counsel failed to prepare for the bench trial itself.
At the post-conviction hearing, the Petitioner testified that counsel failed to prepare
him for the bench trial and never informed him of the defense of his case. He claimed that
counsel’s entire defense strategy was limited to the expectation that the State’s witnesses
would not appear at trial. However, counsel testified that he strongly encouraged the
Petitioner to settle his case in light of the overwhelming nature of the evidence against him,
and he detailed his grim predictions of what would happen if the Petitioner proceeded to
trial, as shown by counsel’s letter to the Petitioner that was admitted at the post-conviction
hearing. Although he acknowledged that there was a “heavy connection” between the
decision to have a bench trial and witness unavailability, counsel said that once it became
clear that Patel would be testifying at trial, he suggested trying to get a plea offer from the
State or asking for a continuance, but the Petitioner refused both of these options. Counsel
asserted that while he had hoped that the two witnesses would not testify at trial and had
investigated whether the State would be able to locate these witnesses, he did not rely on
the witnesses’ absence from trial and prepared for trial as if both witnesses would testify.
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Counsel also said he pursued a theory of misidentification at trial given the lack of clarity
of the surveillance video.
In its order denying relief, the post-conviction court found that counsel “frankly
discussed the fact that a dismissal due to witness unavailability would be Petitioner’s best
chance, if not his only chance, in this case.” The court also found that counsel’s letter to
the Petitioner established that counsel “had a comprehensive knowledge of the strengths
and weaknesses of the case, the extent of the evidence inculpating Petitioner, the likely
outcome based on this evidence, and his awareness of the risk of Petitioner going to trial
versus accepting the plea offer.” The post-conviction court determined that this letter was
not an “abdication of [counsel’s] constitutional duties to his client, but a reaffirmation of
the[m,] despite his pretrial strategy failing to achieve the desired results.” The record fully
supports the post-conviction court’s findings, and we conclude that the Petitioner failed to
show that counsel’s preparation for trial or his defense strategy fell below the level of
competence required of attorneys in criminal cases. Accordingly, the Petitioner is not
entitled to relief on this issue.
Third, the Petitioner asserts that counsel provided ineffective assistance in failing to
communicate with him during the appellate process. Specifically he claims that counsel
“pursued the [direct] appeal without so much as speaking to [him]” and filed an appeal
primarily focused on the unconstitutionality of the confession without consulting with him
regarding other possible issues. He claims that counsel’s failure to communicate “cannot
be justified as some sort of strategic decision.”
At the post-conviction hearing, the Petitioner testified that counsel failed to consult
with him regarding his appeal. Counsel acknowledged that his conversations with the
Petitioner were “less frequent” after the Petitioner’s conviction because, following a
conviction, the record “controls everything.” He said he had “a policy” that if there is a
disagreement regarding issues for appeal, he decides which issues to raise on appeal
because these are legal issues that most defendants do not understand [66]. While counsel
admitted that it was during the appeal that his relationship with the Petitioner went sour,
he believed this was because the Petitioner realized he would be spending the next thirty
years of his life in prison, not because of any issue regarding his representation of the
Petitioner.
In its order denying relief, the post-conviction court noted that while it was a better
policy for attorneys “to communicate all efforts expended on behalf of a criminal client
even if for informational purposes only,” the Petitioner had offered “no evidence as to what
issues trial counsel failed to raise in his appeal” and had not shown “how he was prejudiced
by trial counsel not consulting with him regarding these issues.” We fully agree with the
post-conviction court’s holdings on this issue. We also conclude that the Petitioner has
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failed to show that counsel’s handling of the appeal was deficient in light of the substantial
deference given to counsel in determining the issues on appeal. See Carpenter v. State,
126 S.W.3d 879, 887 (Tenn. 2004) (“The determination of which issues to raise on appeal
is generally within appellate counsel’s sound discretion.”); King v. State, 989 S.W.2d 319,
334 (Tenn. 1999) (“Counsel is given considerable leeway to decide which issues will serve
the appellant best on appeal, and we should not second guess those decisions here.”).
Because the Petitioner failed to establish that counsel provided ineffective assistance as to
this issue, he is not entitled to relief.
Finally, the Petitioner argues that the cumulative effect of all of counsel’s errors
deprived him of the effective assistance of counsel. The cumulative error doctrine “is a
judicial recognition that there may be multiple errors committed in trial proceedings, each
of which in isolation constitutes mere harmless error, but when aggregated, have a
cumulative effect on the proceedings so great as to require reversal in order to preserve a
defendant’s right to a fair trial.” State v. Hester, 324 S.W.3d 1, 76 (Tenn. 2010). The
Petitioner argues that “counsel’s numerous and cumulative deficiencies amounted to a
breakdown of the adversarial process” and that “there is a presumption of prejudice.”
The cumulative error doctrine only applies when there has been more than one error
committed during the trial proceedings. Id. at 77. Even if counsel were somehow deficient
in failing to inform the Petitioner of the differences between a jury trial and a bench trial,
which we feel the Petitioner failed to demonstrate at the post-conviction hearing, the
Petitioner has certainly failed to establish that counsel committed more than one error in
his case. Accordingly, we conclude that the Petitioner is not entitled to post-conviction
relief under the cumulative error doctrine.
CONCLUSION
Based on the aforementioned authorities and reasoning as well as the record as a
whole, we affirm the judgment of the post-conviction court.
____________________________________
CAMILLE R. MCMULLEN, JUDGE
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