John Willie Stone v. State of Tennessee ( 2019 )


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  •                                                                                           06/24/2019
    IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    Assigned on Briefs at Knoxville April 23, 2019
    JOHN WILLIE STONE v. STATE OF TENNESSEE
    Appeal from the Circuit Court for Bedford County
    No. 18042-PC     Franklin Lee Russell, Judge
    No. M2018-01214-CCA-R3-PC
    The Petitioner, John Willie Stone, appeals from the Bedford County Circuit Court’s
    denial of his petition for post-conviction relief from his burglary of an automobile,
    misdemeanor theft, and aggravated assault convictions, for which he is serving a twenty-
    one-year sentence. The Petitioner contends that he received the ineffective assistance of
    trial and appellate counsel. We affirm the judgment of the post-conviction court.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
    ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which THOMAS
    T. WOODALL and ROBERT W. WEDEMEYER, JJ., joined.
    Garrett D. Haynes, Shelbyville, Tennessee, for the appellant, John Willie Stone.
    Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior
    Assistant Attorney General; Robert James Carter, District Attorney General; and Michael
    David Randles, Assistant District Attorney General, for the appellee, State of Tennessee.
    OPINION
    Following a jury trial, the Petitioner was convicted of one count each of burglary
    of an automobile, theft of property valued at $500 or less, and the aggravated assault of
    Andrew Doak. See State v. John Willie Stone, No. M2016-01269-CCA-R3-PC, 
    2017 WL 2438580
    , *1 (Tenn. Crim. App. June 6, 2017), perm. app. denied (Tenn. Oct. 4, 2017).
    After the conclusion of the trial but before the sentencing hearing, the Petitioner filed a
    pro se motion seeking the appointment of new counsel. The trial court treated this
    motion as a petition for post-conviction relief based on the ineffective assistance of trial
    counsel. The court appointed new counsel and, following a hearing addressing both the
    Petitioner’s motion for new trial and the designated petition for post-conviction relief, the
    court denied all claims. On appeal from the conviction proceedings, this court
    determined that the trial court mistakenly treated the Petitioner’s motion for the
    appointment of new counsel as a petition for post-conviction relief. This court vacated
    the portion of the trial court’s order denying post-conviction relief, but this court
    addressed the claim of ineffective assistance of trial counsel, denied relief, and
    determined that the Petitioner had exhausted all claims related to the ineffective
    assistance of trial counsel. 
    Id. *1, 10.
    In its opinion, this court summarized the facts as follows:
    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 [Petitioner], jumped to
    the ground and began to walk away. Mr. Doak followed the [Petitioner]
    and noticed that he “st[uck] something under his shirt and down in his
    pockets.” Due to the darkness and the fact that the [Petitioner] was wearing
    a hat, Mr. Doak was initially unable to discern much about his appearance.
    After Mr. Doak had followed the [Petitioner] a short distance, the
    [Petitioner] suddenly turned and “threw his hands” up, asking Mr. Doak,
    “What’s up?” Mr. Doak inquired what the [Petitioner] was doing, and the
    [Petitioner] responded that he wasn’t “doing nothing.” Mr. Doak then
    accused the [Petitioner] of breaking into the truck, which the [Petitioner]
    denied. The [Petitioner] then began to run. Mr. Doak gave chase, and the
    [Petitioner] reached under his shirt and told Mr. Doak, “Don’t make me
    pull this on you.” The [Petitioner] “darted away,” and Mr. Doak attempted
    to round a tree and cut him off when the [Petitioner] tripped and fell to the
    ground. The [Petitioner] 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 [Petitioner]
    at bay, Mr. Doak kicked him in the head, but the [Petitioner] managed to
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    stay on his feet. Mr. Doak and the [Petitioner] continued to scuffle, during
    which Mr. Doak saw “something get throwed [sic] out from under [the
    Petitioner’s] shirt.” Eventually, Mr. Doak gained control of the [Petitioner]
    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 [Petitioner] had a knife, and he tossed his telephone
    aside so that he could concentrate on disarming the [Petitioner]. Mr. Doak
    was afraid of being stabbed. The [Petitioner] continued to struggle, and
    Mr. Doak ultimately took control of the knife and cast it away, all the while
    keeping the [Petitioner] pinned to the ground. Shelbyville Police
    Department (“SPD”) officers arrived a short time later.
    John Willie Stone, 
    2017 WL 2438580
    , at *1.
    The Petitioner filed a pro se petition seeking post-conviction relief on April 16,
    2018. The Petitioner was appointed counsel, and counsel filed an amended petition. At
    the June 14, 2018 post-conviction hearing, trial counsel testified that he had worked for a
    public defender’s office for many years and that he represented the Petitioner at the trial
    but that he withdrew as the Petitioner’s counsel before the sentencing hearing. He
    explained that appellate counsel was appointed to represent the Petitioner at the joint
    motion for new trial and sentencing hearing and on appeal.
    Trial counsel testified that he attempted to negotiate a plea agreement and that the
    State made several offers, which were conveyed to the Petitioner. Counsel said that the
    Petitioner was actively involved in the negotiations. Counsel recalled that the
    Petitioner’s defense was that Mr. Doak attacked the Petitioner as he walked down the
    street. Counsel stated he cross-examined trial witnesses by asking questions consistent
    with the theory that the Petitioner was assaulted but that he did not introduce any
    photographs of the victim’s injuries. Counsel agreed that the Petitioner had requested
    that counsel submit photographs of the injuries as evidence but said that he did not
    because the Petitioner’s injuries did not appear to be defensive wounds. Counsel
    explained that the Petitioner’s thumb injury was consistent with a person “holding a knife
    in their hand with the blade up preparing to cut somebody or make a cutting motion[.]”
    Counsel said that he had seen such injuries previously. Counsel believed a photograph of
    the Petitioner’s thumb would have damaged the Petitioner’s defense.
    Trial counsel testified that he did not request Tennessee Rule of Criminal
    Procedure 26.02 material from Lieutenant Mike Baker. Counsel said that he spoke with
    all three of the police officers involved with the Petitioner’s case and that counsel
    reviewed the police report. Counsel said that he did not remember if he requested a
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    circumstantial evidence jury instruction but that the judge would always include a
    circumstantial evidence instruction, even if trial counsel did not request it.
    Trial counsel testified that he did not file any pretrial motions. Counsel said that
    he did not consider seeking to suppress the knife because he believed there was no basis
    to file a motion to suppress. Counsel did not recall if he had DNA testing performed on
    the knife but said that the Petitioner and Mr. Doak had been cut by the knife. Counsel
    said that he did not object to the chain of custody of the knife because the chain of
    custody was proper. Counsel explained that the police officer responding to the scene
    properly preserved the knife and then placed it in an evidence locker. Counsel said that
    because the police officer followed the proper procedure for collecting evidence, no one
    else would have had access to the knife.
    On cross-examination, trial counsel testified that a photograph of the Petitioner’s
    injured hand would have been more damaging than helpful. Counsel said that testimony
    established the Petitioner’s hand injury. Counsel said testimony about the hand injury
    allowed him to argue that the Petitioner was the victim and that Mr. Doak was the initial
    aggressor. Counsel stated that the Petitioner never claimed ownership of the knife and
    denied ever possessing it.
    Trial counsel testified that the State’s final plea offer was ten years’ incarceration
    at forty-five percent and that he conveyed this offer to the Petitioner. Counsel said that
    he advised the Petitioner that the Petitioner risked receiving a longer sentence if
    convicted at a trial.
    Appellate counsel testified that he represented the Petitioner at the joint motion for
    new trial and sentencing hearing, and on appeal. Counsel said that the Petitioner wanted
    to pursue claims of ineffective assistance of trial counsel. Counsel said that he expressed
    his concerns to the Petitioner regarding the wisdom of raising ineffective assistance of
    trial counsel at this stage in the appellate process. Counsel stated that he told the
    Petitioner, “Please do not go forth, let’s do this properly, these are the pitfalls, this is why
    you shouldn’t do it, if you want to preserve your rights, let’s do this in the traditional way
    [be]cause there’s a lot of wisdom behind choosing the correct path.” Counsel said that
    despite his admonitions, the Petitioner insisted on pursuing the claims of ineffective
    assistance of trial counsel. Counsel denied that he suggested the ineffective assistance of
    trial counsel claim be included in the motion for new trial.
    Appellate counsel did not recall presenting any proof at the sentencing hearing.
    He stated that he would not be surprised to learn that he did not put on any proof because
    he did not know of any helpful proof. Counsel agreed that he did not make any argument
    regarding mitigating evidence and said that he was not aware of any mitigating evidence.
    Counsel said he drafted the Petitioner’s appellate brief. When asked if he made any
    citations to the record, counsel said that he simply listed the petitioner’s claims because
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    there was nothing in the record to support the Petitioner’s claims. Counsel explained that
    he also failed to cite to any legal authority in the brief because he did not know of any
    that would support the Petitioner’s claims. Counsel said that this court waived
    consideration of the ineffective assistance of counsel claim because the brief lacked
    argument, citations to authorities, and appropriate references to the record.
    On cross-examination, appellate counsel testified that the Petitioner raised
    concerns about trial counsel’s alleged ineffective assistance. Counsel testified that after
    he reviewed the case, he advised the Petitioner to wait until after the appeal from the
    conviction proceedings to raise an ineffective assistance of trial counsel claim. Counsel
    said the brief did not include any citations for the ineffective assistance of trial counsel
    claim because he could not find anything in the record or in authority to support the
    claim.
    The Petitioner testified that trial counsel was ineffective in multiple ways. The
    Petitioner said that counsel failed to conduct plea negotiations adequately. The Petitioner
    said that, during plea negotiations, counsel said he could negotiate an eight-year sentence
    but that the State did not agree to an eight-year sentence.
    The Petitioner testified that he suffered several injuries during the incident with
    Mr. Doak. The Petitioner said that he received a finger cut and a “circle around [his]
    eye.” He said that he asked trial counsel to present photographs of the injuries to the jury
    but that counsel did not. The Petitioner stated that trial counsel did not believe the
    Petitioner’s version of the incident. He alleged that counsel would have better prepared
    for the Petitioner’s trial if counsel had believed the Petitioner. The Petitioner said that
    counsel should have filed a motion to suppress the knife on the basis of an improper
    chain of custody. The Petitioner believed counsel should have had the knife tested for the
    presence of DNA.
    The Petitioner testified that he never discussed trial strategy with trial counsel and
    that they did not have a “meaningful working relationship.” The Petitioner said that
    counsel visited the Petitioner only once at the jail and that counsel never filed any pretrial
    motions. The Petitioner stated that counsel did not adequately cross-examine witnesses
    and investigate who handled the knife.
    The Petitioner testified that he received the ineffective assistance of appellate
    counsel. The Petitioner said that the Petitioner did not raise any post-conviction issues
    intentionally but that he had attempted to remove trial counsel. The Petitioner said
    appellate counsel advised the Petitioner to raise all of his issues at the motion for new
    trial. The Petitioner said that he was unfamiliar with the law and that he did not realize
    he had raised a post-conviction issue. The Petitioner denied that counsel pressured the
    Petitioner to raise the ineffective assistance of trial counsel claim in the motion for new
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    trial but stated that appellate counsel knew as an experienced attorney that the claim
    should have been deferred.
    On cross-examination, the Petitioner agreed that an attorney could not promise to
    obtain a specific plea offer from the State. The Petitioner understood that the State’s
    offer was for eight years but said that when co-counsel conveyed the offer to the
    Petitioner, the offer was for ten years. The Petitioner said he and co-counsel were not in
    agreement regarding plea negotiations, and he believed co-counsel was not working in
    the Petitioner’s best interests. The Petitioner stated that trial counsel was not present
    when this ten-year offer was conveyed and that the Petitioner rejected it. The Petitioner
    believed that at the next court date he would have been able to discuss the offer with trial
    counsel and to determine what had happened to the eight-year offer trial counsel assured
    him the State would accept.
    The Petitioner testified that if trial counsel had presented better evidence, the jury
    would have believed that Mr. Doak was the original aggressor and that the Petitioner was
    the victim. The Petitioner conceded that the jury heard testimony from Mr. Doak and
    from the Petitioner and credited Mr. Doak’s testimony.
    The Petitioner testified that if trial counsel had adequately represented him, the
    results of his trial would have been different. The Petitioner stated that if appellate
    counsel had not committed errors, the results of his appeal would have been different.
    At the conclusion of the hearing, the post-conviction court denied relief. In a
    written order, the court found that the Petitioner had waived consideration of his
    ineffective assistance claim against trial counsel by raising the issue in the appeal of the
    conviction proceedings. The court concluded that evidence regarding trial counsel’s
    ineffectiveness was “rendered irrelevant” by this court’s ruling on appeal and held that
    the ineffective assistance of counsel evidence at the post-conviction hearing was
    “stricken.”
    The post-conviction court considered the merits of the Petitioner’s claim that
    appellate counsel was ineffective. Regarding appellate counsel’s appellate brief, the
    court determined that no testimony or case law supported the Petitioner’s claim that trial
    counsel provided ineffective assistance. The court determined that trial and appellate
    counsel “each did the best he could with the facts and law with which he was presented.”
    This appeal followed.
    Post-conviction relief is available “when the conviction or sentence is void or
    voidable because of the abridgement of any right guaranteed by the Constitution of
    Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103 (2012). A
    petitioner has the burden of proving his factual allegations by clear and convincing
    evidence. 
    Id. § 40-30-110(f)
    (2012). A post-conviction court’s findings of fact are
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    binding on appeal, and this court must defer to them “unless the evidence in the record
    preponderates against those findings.” Henley v. State, 
    960 S.W.2d 572
    , 578 (Tenn.
    1997); see Fields v. State, 
    40 S.W.3d 450
    , 456-57 (Tenn. 2001). A post-conviction
    court’s application of law to its factual findings is subject to a de novo standard of review
    without a presumption of correctness. 
    Fields, 40 S.W.3d at 457-58
    .
    To establish a post-conviction claim of the ineffective assistance of counsel in
    violation of the Sixth Amendment, a petitioner has the burden of proving that (1)
    counsel’s performance was deficient and (2) the deficient performance prejudiced the
    defense. Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984); see Lockhart v. Fretwell,
    
    506 U.S. 364
    , 368-72 (1993). The Tennessee Supreme Court has applied the Strickland
    standard to an accused’s right to counsel under article I, section 9 of the Tennessee
    Constitution. See State v. Melson, 
    772 S.W.2d 417
    , 419 n.2 (Tenn. 1989).
    A petitioner must satisfy both prongs of the Strickland test in order to prevail in an
    ineffective assistance of counsel claim. 
    Henley, 960 S.W.2d at 580
    . “[F]ailure to prove
    either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
    assistance claim.” Goad v. State, 
    938 S.W.2d 363
    , 370 (Tenn. 1996). To establish the
    performance prong, a petitioner must show that “the advice given, or the services
    rendered . . . , are [not] within the range of competence demanded of attorneys in criminal
    cases.” Baxter v. Rose, 
    523 S.W.2d 930
    , 936 (Tenn. 1975); see 
    Strickland, 466 U.S. at 690
    . The post-conviction court must determine if these acts or omissions, viewed in light
    of all of the circumstances, fell “outside the wide range of professionally competent
    assistance.” 
    Strickland, 466 U.S. at 690
    . A petitioner “is not entitled to the benefit of
    hindsight, may not second-guess a reasonably based trial strategy by his counsel, and
    cannot criticize a sound, but unsuccessful, tactical decision.” Adkins v. State, 
    911 S.W.2d 334
    , 347 (Tenn. Crim. App. 1994); see Pylant v. State, 
    263 S.W.3d 854
    , 874 (Tenn.
    2008). This deference, however, only applies “if the choices are informed . . . based upon
    adequate preparation.” Cooper v. State, 
    847 S.W.2d 521
    , 528 (Tenn. Crim. App. 1992).
    To establish the prejudice prong, a petitioner must show that “there is a reasonable
    probability that, but for counsel’s unprofessional errors, the result of the proceeding
    would have been different.” 
    Strickland, 466 U.S. at 694
    . “A reasonable probability is a
    probability sufficient to undermine confidence in the outcome.” 
    Id. The Petitioner
    contends that trial and appellate counsel provided the ineffective
    assistance of counsel. The Petitioner asserts that trial counsel failed to introduce
    photographs of the Petitioner’s injuries and did not use a strategy in furtherance of the
    Petitioner’s defense strategy. The Petitioner argues that trial counsel was ineffective (1)
    for failing to file a motion to suppress the knife and (2) for not cross-examining
    effectively the police officers responding to the incident about the chain of custody of the
    knife. The Petitioner claims that trial counsel did not properly prepare the Petitioner to
    testify at the trial, failed “to request statements from every witness under Tenn. R. Crim.
    P. 26.2[,]” and failed to renew the motion for a judgment of acquittal following the
    -7-
    conclusion of the Petitioner’s proof at trial. The Petitioner asserts that he was prejudiced
    by these deficiencies and that the cumulative effect of trial counsel’s deficiencies
    deprived the Petitioner of the effective assistance of counsel. The State responds that the
    issue has been previously determined and that the post-conviction court properly denied
    relief.
    The Petitioner claims that he also received ineffective assistance of appellate
    counsel because appellate counsel failed to follow the rules of Tennessee Appellate
    Procedure. Specifically, he argues that appellate counsel failed to raise properly the issue
    of ineffective assistance of trial counsel on appeal. In the appeal from the conviction
    proceedings, this court waived plenary review of the ineffective assistance of trial
    counsel issue because the Petitioner’s brief “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.” John Willie
    Stone, 
    2017 WL 2438580
    , at *11.
    I.     Trial Counsel
    In his post-conviction petition, the Petitioner alleged trial counsel provided
    ineffective assistance, and the record reflects that it has been previously determined in the
    appeal of his convictions. Tennessee Code Annotated section 40-3-106(h) states,
    A ground for relief is previously determined if a court of competent
    jurisdiction has ruled on the merits after a full and fair hearing. A full and
    fair hearing has occurred where the petitioner is afforded the opportunity to
    call witnesses and otherwise present evidence, regardless of whether the
    petitioner actually introduced any evidence.
    The Petitioner raised this issue at his motion for new trial and sentencing hearing, and the
    trial court denied relief. In its opinion affirming the Petitioner’s convictions, this court
    concluded that the Petitioner’s motion requesting new counsel was not a petition for post-
    conviction relief and that the Petitioner still had the opportunity to seek post-conviction
    relief in accord with the Post-Conviction Procedure Act. 
    Id. at *10.
    However, this court
    concluded that the Petitioner had “exhausted any and all claims relative to the
    ineffectiveness of counsel,” after concluding that the Petitioner did not receive the
    ineffective assistance of trial counsel. 
    Id. This court
    reasoned, “The [trial] court
    explicitly accredited the testimony of trial counsel and explicitly discredited that of the”
    Petitioner and held “that the [Petitioner] ha[d] failed to prove by clear and convincing
    evidence any facts that demonstrate that trial counsel’s representation was deficient or
    prejudicial.” 
    Id. at *11.
    As a result, the Petitioner is not entitled to relief on this basis.
    II.    Appellate Counsel
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    Despite the Petitioner’s having previously exhausted his claim that trial counsel
    provided ineffective assistance, the Petitioner’s claim that his appellate counsel was
    ineffective was properly raised in his post-conviction petition. See Joseph Newton v.
    State, No. M2016-02240-CCA-R3-PC, 
    2017 WL 5901032
    , at *7 (Tenn. Crim. App. Nov.
    29, 2017) (holding that the petitioner had not waived review of claims of ineffective
    assistance of appellate counsel when claims of ineffective assistance of trial counsel had
    been determined on direct review from the conviction proceeding), perm. app. denied
    (Tenn. Mar. 14, 2018); Ronald Yates v. State, No. W2008-02067-CCA-R3-PC, 
    2009 WL 4505436
    , at *1 (Tenn. Crim. App. Dec. 3, 2009) (holding that the petitioner had not
    waived his post-conviction claim of the ineffective assistance of appellate counsel when
    the petitioner had previously litigated the ineffective assistance of trial counsel in the
    direct appeal from the conviction proceeding); John Earl Scales v. State, No. M2003-
    01753-CCA-R3-PC, 
    2004 WL 1562542
    , at *1 (Tenn. Crim. App. July 13, 2004) (holding
    that raising the ineffective assistance of trial counsel on direct appeal from the conviction
    proceeding does not preclude a petitioner from asserting subsequently the ineffective
    assistance of appellate counsel as a ground for post-conviction relief). The legal standard
    that applies to ineffective assistance of appellate counsel claims is the same standard that
    applies to claims regarding the performance of trial counsel. Carpenter v. State, 
    126 S.W.3d 879
    , 886 (Tenn. 2004).
    The Petitioner asserts that appellate counsel failed to comply with Tennessee
    Court of Criminal Appeals Rule 10(b), which states, “Issues which are not supported by
    argument, citation to authorities, or appropriate references to the record will be treated as
    waived in this court.” He also claims that counsel failed to comply with Tennessee Rule
    of Appellate Procedure 27(a)(7), which states that an appellate brief shall contain an
    argument “setting forth . . . the contentions of the appellant with respect to the issues
    presented, and the reasons therefor, including the reasons why the contentions require
    appellate review, with citations to the authorities and appropriate references to the record
    . . . relied on[.]”
    Regarding the sufficiency of appellate counsel’s advocacy for the Petitioner, the
    post-conviction court found that counsel “did the best he could with the facts and law
    with which he was presented.” Although appellate counsel may not have complied with
    the letter of the Rules, this court determined in the previous appeal that the Petitioner’s
    ineffective assistance allegations did not warrant relief. The record supports the post-
    conviction court’s determination that appellate counsel did not provide the ineffective
    assistance of counsel. The Petitioner is not entitled to relief on this basis.
    Based upon the foregoing and the record as a whole, the judgment of the post-
    conviction court is affirmed.
    ____________________________________
    ROBERT H. MONTGOMERY, JR., JUDGE
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Document Info

Docket Number: M2018-01214-CCA-R3-PC

Judges: Judge Robert H. Montgomery, Jr.

Filed Date: 6/24/2019

Precedential Status: Precedential

Modified Date: 6/24/2019