Prentis S. Lee v. State of Tennessee ( 2021 )

10/06/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs June 1, 2021
PRENTIS S. LEE v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 15-02464 Jennifer Johnson Mitchell, Judge
No. W2020-00818-CCA-R3-PC
The Petitioner, Prentis S. Lee, filed a petition for post-conviction relief challenging his
conviction for two counts of rape resulting in a ten-year sentence. The post-conviction
court denied relief, and the Petitioner appeals. On appeal, the Petitioner alleges that he
received ineffective assistance of counsel because trial counsel failed to properly explain
the elements of two additional counts of rape in a superseding indictment. After our
review, we affirm the judgment of the post-conviction court denying the Petitioner relief.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER, J., and J. ROSS DYER, J., joined.
Monica A. Timmerman, Memphis, Tennessee, for the appellant, Prentis S. Lee.
Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle,
Assistant Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
TRIAL
Following a jury trial, the Petitioner was convicted of rape without consent and rape
while the victim was mentally incapacitated or physically helpless. See Tenn. Code Ann.
§ 39-13-503(a)(1)-(3). The two convictions were merged, and the Petitioner was sentenced
to ten years. See State v. Prentis Lee, No. W2015-01538-CCA-R3-CD, 2016 WL 6915582(Tenn. Crim. App. Nov. 23, 2016).
At the trial, the victim testified that she was twenty-six years old and had been dating
Larry McGowan continuously since the age of seventeen. Lee, 2016 WL 6915582, at *1.
In April 2010, the victim and Mr. McGowan were staying at the Petitioner’s home for a
few days. Mr. McGowan and the Petitioner were cousins. On April 10, 2010, the victim
and Mr. McGowan attended two parties alongside the Petitioner. The Petitioner’s brother,
Nicholas Lee, and the victim’s sister also attended the parties. The victim testified that she
did not drink alcohol often and that she became intoxicated at the first party after drinking
two beers. The victim became sick at the second party and began to throw up. The group
decided to leave and return to the Petitioner’s home.
When the group arrived at the Petitioner’s home, the victim called her stepfather to
let him know that no one was able to drive her sister home because everyone was
intoxicated. Lee, 2016 WL 6915582, at *2. At the home, the victim continued to feel
intoxicated and nauseated. Id. at *1. Mr. McGowan helped the victim shower and he made
a pallet on the living room floor so the victim could sleep. The victim laid down on the
pallet. She wore a shirt and a towel around her waist, and she was covered with a sheet.
Before she fell asleep, the victim’s sister was sitting on the couch and the Petitioner and
Mr. McGowan were playing chess. The victim was asleep when the Petitioner drove her
sister home.
The victim described herself as a heavy sleeper. Lee, 2016 WL 6915582, at *1. She
testified that at some point, she awoke to a man having sexual intercourse with her. The
room was dark, and she could not see the man’s face. The victim screamed Mr.
McGowan’s name, but the man did not respond. The victim touched the man’s navel and
described it as “bushy.” The victim then touched the man’s face and felt thick facial hair.
The attack continued for two or three minutes after she awoke. The victim asserted that
she was in shock and unable to respond. The man then got up and ran toward the bedrooms.
The victim stated that Mr. McGowan did not have “bushy” navel hair and neither Mr.
McGowan or the Petitioner’s brother had thick facial hair. The victim asserted that the
room was too dark to allow her to see her attacker’s face. She believed her attacker was
wearing a condom.
The victim testified that after the attack, she cried and walked through the house to
see who was awake. Lee, 2016 WL 6915582, at *1. She found the Petitioner’s brother
asleep and snoring loudly in one of the bedrooms. The victim could not find Mr.
McGowan. The victim knocked on the Petitioner’s bedroom door and entered. The
Petitioner’s clothes were on the floor, and he was naked in his bed. The victim told the
Petitioner, “You did something to me.” The Petitioner denied that he had committed the
act. The victim explained that she knew the Petitioner was the man who raped her because
he was the only person in the house who was awake. The victim returned to the living
room and continued crying.
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The victim asserted that she cried for five to ten minutes when she heard a knock on
the door. Lee, 2016 WL 6915582, at *2. The door was locked, and the lights were off.
The victim did not recall locking the door or turning off the lights. The victim opened the
door, and Tasha Banks and Mr. McGowan entered the home. Mr. McGowan asked the
victim what was wrong to which she responded, “Your cousin just raped me.” Mr.
McGowan spoke to the Petitioner and told him that the victim had stated that he “did
something to her.” The victim testified that the Petitioner became “aggressive” and denied
the claims. The victim called the police, and the Petitioner asked the victim and Mr.
McGowan to leave.
After the police arrived, the victim was transported to the Memphis Sexual Assault
Resource Center for an examination. Lee, 2016 WL 6915582, at *2. The victim stated
that the nurse took a vaginal swab and commented that the swab smelled like a condom.
The victim was then taken to the police station to give a statement.
The victim stated that she did not have a sexual relationship with the Petitioner and
that she did not consent to sexual intercourse with him on that night. Lee, 2016 WL
6915582, at *2. She said that prior to waking up, she was unaware that anyone had entered
or left the house. She denied initiating sexual contact with the Petitioner as an act of
revenge against Mr. McGowan’s infidelities. The victim denied telling anyone that she
was unsure if the Petitioner had raped her or that someone else had possibly raped her.
As a result of the attack, the victim testified that her attitude and personality had
changed. Lee, 2016 WL 6915582, at *2. She stated that she did not trust anyone, could
not sleep in another person’s home, and did not socialize often. She could not spend time
with Mr. McGowan’s family, because they were related to the Petitioner.
On cross-examination, the victim stated that the group had shared two or three
“blunts” of marijuana on the night of the incident. Lee, 2016 WL 6915582, at *2. She said
the group returned to the Petitioner’s home around 2:00 or 3:00 a.m. She did not recall
what time she called the police. She testified that she was not so intoxicated that she was
unable to recall what had occurred.
The victim acknowledged that she received $2,000 from the State victim
compensation fund in June 2011. She denied that she was aware of the fund before April
2010, and she never discussed the compensation.
The victim denied that she and Mr. McGowan had ever broken up during the course
of their relationship. Lee, 2016 WL 6915582, at *2. She also denied that she had ever
suspected him of being unfaithful. The victim denied that she was jealous that Ms. Banks
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and Mr. McGowan left the house together that night, that she propositioned the Petitioner
as a result, that the two had consensual sex, and that she lied about being raped. The victim
testified that she was arrested for various domestic violence charged while the Petitioner’s
rape charges were pending and that all of her charges were dismissed. Id. at *3.
Tasha Banks testified that in April 2010, she had been dating the Petitioner for
approximately four months. Lee, 2016 WL 6915582, at *3. On April 11, 2010, the
Petitioner called her sometime after midnight and asked if she had a condom. Ms. Banks
said she would bring a bag of condoms with her to the Petitioner’s house. The Petitioner
and Mr. McGowan picked Ms. Banks up from her house and brought her back to the
Petitioner’s home. Upon arriving, she saw the victim sleeping on the floor. The Petitioner
asked Ms. Banks to go to a convenience store and buy some juice and to take Mr.
McGowan. When the two left the home, the victim was still asleep on the floor, and Ms.
Banks did not lock the door or turn off the lights.
Upon returning, Ms. Banks recalled that the lights were off and that the front door
was locked. Lee, 2016 WL 6915582, at *3. After knocking on the door for “a good three
minutes,” the victim answered the door, and Ms. Banks could tell something was wrong.
Ms. Banks went to the Petitioner’s bedroom and found him naked. Id. at *3. Mr.
McGowan came to the bedroom and asked to speak with the Petitioner.
Ms. Banks discovered that her bag was missing a condom. Lee, 2016 WL 6915582,
at *4. She stated that the Petitioner had a beard and hair on his chest and stomach. She
testified that the victim did not appear to be intoxicated when she saw her, but the Petitioner
and Mr. McGowan appeared to be under the influence of alcohol.
Mr. McGowan testified that at the time of trial, he and the victim had been in a
relationship for ten or eleven years. Lee, 2016 WL 6915582, at *4. Mr. McGowan denied
that anyone in the group smoked marijuana on April 10, 2010. He recalled that the victim
vomited and was unable to stay awake. Mr. McGowan and Ms. Banks drove to a
convenience store and were gone for approximately ten minutes. Id. at *5. Upon leaving,
the kitchen light was on, and he left the door unlocked because he did not have a key.
When the two returned to the home, the door was locked, the lights were off, and the victim
answered the door. The victim was crying and said that when she woke up, a man was “in”
her.
After seeing the victim, Mr. McGowan confronted the Petitioner in his bedroom.
Lee, 2016 WL 6915582, at *5. The Petitioner denied the victim’s claim of rape. Mr.
McGowan and the Petitioner argued for approximately ten minutes. At the time of the
incident, Mr. McGowan did not have a beard or hair on his navel.
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On cross-examination, Mr. McGowan testified that he and the victim had been “on
and off” for five years and that they had broken up a few times. Lee, 2016 WL 6915582,
at *5. He stated that it was necessary for both he and Ms. Banks to go to the convenience
store because he did not have a driver’s license, but had planned to make the purchase of
juice and cigars. Upon returning to the home, the victim answered the door and told Mr.
McGowan that she woke up to the Petitioner having sex with her. She stated that she felt
a mustache and after realizing it was not Mr. McGowan, she “kind of woke up” and saw
the Petitioner run to the back of the house.
Tammy Keough, a nurse practitioner with the Memphis Sexual Assault Resource
Center, testified as an expert in forensic nursing. Lee, 2016 WL 6915582, at *6. She
examined the victim on April 11, 2010 and described the victim as cooperative, tense, and
crying. The victim reported that she thought the perpetrator may have worn a condom
when he vaginally penetrated her and that she had been kissed inside of her mouth. Ms.
Keough took swabs of the victim’s mouth and vaginal area. She also took a penile swab
from the Petitioner. She said that the victim did not have any traumatic injuries and that
she did not routinely smell for condom use.
Officers Lee Walker and Andrew Podesta of the Memphis Police Department
responded to a call on April 11, 2010. Lee, 2016 WL 6915582, at *7. Upon arriving, the
victim was crying and was “adamant” that something had happened to her. Officer Walker
testified that the Petitioner was the only man in the house with facial hair. The two officers
searched the residence and found an open condom wrapper on the headboard in one of the
bedrooms. Officer Walker testified that the victim did not tell him that the Petitioner raped
her, but she did say the perpetrator had hair on his face and chest.
Lieutenant Celia Tisby of the Memphis Police Department testified that she was the
lead investigator in the case. Lee, 2016 WL 6915582, at *7. She went to the scene and
spoke to the victim, describing the victim’s demeanor as upset and similar to rape victims
in other cases she had investigated. Lieutenant Tisby and Major Chorcie Jones interviewed
the Petitioner at the police department. Lee, 2016 WL 6915582, at *7. Lieutenant Tisby
testified that the Petitioner signed a waiver of rights form prior to the interview and had
agreed to speak to the officers. The waiver of rights form, however, was missing from the
file, and Lieutenant Tisby was not sure if the file was misplaced during the investigation
or after the file was given to the prosecutors. The Petitioner was given an opportunity to
review his statement and sign, but he chose not to sign after learning he was being charged.
The Petitioner told the officers that he, Mr. Lee, Mr. McGowan, the victim, and the
victim’s sister attended a party on the night of the incident. Lee, 2016 WL 6915582, at *8.
He stated that the victim had consumed beer and vodka at the party and that she had
vomited. The group returned to his home around 2:00 or 3:00 a.m. The Petitioner claimed
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that he asked Mr. McGowan and Ms. Banks to go to a store because Mr. McGowan was
“trying to mess” with Ms. Banks and that he and Mr. McGowan occasionally “shared”
women.
The Petitioner told the officers that after Mr. McGowan and Ms. Banks left, the
victim woke up and said “[Y]’all think y’all slick, who is that girl?” Lee, 2016 WL
6915582, at *8. After explaining who the woman was, the Petitioner claimed that the
victim asked him, “[D]o you want some of this?” The victim removed her sheet, and she
was naked. The Petitioner stated that he retrieved a condom from Ms. Banks’ bag and the
two had sexual intercourse. The Petitioner asserted that when the victim said Mr.
McGowan’s name, he believed Mr. McGowan was returning, so the Petitioner went back
into his bedroom. After Mr. McGowan and Ms. Banks returned two or three minutes later,
Mr. McGowan confronted the Petitioner and asked what happened between him and the
victim. The Petitioner denied that anything happened, and the victim began crying. The
Petitioner asked everyone to leave.
Nicholas Lee, the Petitioner’s brother, testified that after returning to his home on
the night of the incident, the victim did not seem intoxicated and was “talking normal.”
Lee, 2016 WL 6915582, at *9. He did not recall hearing the victim scream at any point.
Mr. Lee and the Petitioner were handcuffed and transported to the police station as suspects
in the victim’s rape. He stated that three or four days prior to the incident, he heard the
victim state that a friend received $10,000 from the victim’s compensation fund after she
claimed that she was raped. Mr. Lee also spent time with Mr. McGowan and the victim
after the incident, and he testified that the victim did not act upset or scared. Mr. Lee did
not inform officers of the victim’s statement about her friend’s receiving victim
compensation money.
DIRECT APPEAL
Following the Petitioner’s convictions, he appealed. On direct appeal, the Petitioner
argued that: (1) the trial court erred in denying his motion to suppress his statement to
police officers; (2) the failure to preserve a record of the preliminary hearing mandated
dismissal of the charges or a new preliminary hearing; (3) the evidence was insufficient to
support the convictions; (4) the trial court erred in limiting defense counsel’s cross-
examination of various witnesses; (5) the trial court erred in admitting victim impact
evidence; (6) the trial court erred in allowing the State to present rebuttal witnesses who
remained in the courtroom during the trial; (7) the trial court erred in failing to instruct the
jury on assault as a lesser-included offense of rape; (8) the Petitioner’s sentence was
excessive; and (9) the cumulative effect of the errors required a new trial. Lee, 2016 WL
6915582, at *11.
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This court concluded that the trial court did not credit the Petitioner’s testimony at
the motion to suppress hearing, but instead found that the Petitioner had waived his rights,
that he agreed to make a statement after officers informed him of his rights, and that the
statement was voluntarily given. Lee, 2016 WL 6915582, at *14-15. This court also
concluded that the Petitioner did not renew his initial motion for a new preliminary hearing
after the filing of the superseding indictment; rather, defense counsel stated that the
Petitioner “waived any time constraints, agreed to proceed under the new indictment, and
was prepared to proceed with trial[.]” Accordingly, the Petitioner was not entitled to relief
with regard to the preliminary hearing issue. Id. at *17. This court also concluded that the
evidence was sufficient. Lee, 2016 WL 6915582, at *18.
This court found that the trial court did not abuse its discretion in excluding
evidence. Lee, 2016 WL 6915582, at *20. This court found that the victim’s testimony
about the effects of rape on her relationship with the Petitioner’s family was relevant. Id.This court concluded that any error allowing rebuttal witnesses would have been harmless.
Id. at *24. Additionally, this court concluded that no error existed by not charging lesser
assault offenses. Id. at *25. This court concluded that the trial court considered the
purposes and principles of the Sentencing Act, that the Petitioner’s sentence was within the
proper range for a Range I offender, and that the record supported the findings regarding
the enhancement factors, and that the court did not abuse its discretion in sentencing the
Petitioner. Id. at *28. Finally, this court concluded that no cumulative error existed. Id.POST-CONVICTION HEARING
The Petitioner filed a pro se petition for post-conviction relief on December 1, 2017.
He argued that he received ineffective assistance of counsel and that prosecutorial
misconduct occurred. Following the appointment of counsel, an amended petition was
filed on October 2, 2019, adding allegations that trial counsel failed to preserve the
Petitioner’s right to a preliminary hearing and failed to effectively cross-examine
witnesses. A second amended petition was filed on the same day, alleging that trial counsel
failed to request a continuance based on the superseding indictment, failed to object to the
admission of the Petitioner’s unsigned police statement, erroneously advised the Petitioner
that he would be sentenced as a mitigated offender, and that the trial court erred in
considering pending cases during sentencing.
At the post-conviction hearing, the Petitioner testified that his original defense
counsel represented him from his arrest in 2011 until trial counsel’s death. He testified that
original trial counsel did not have a preliminary hearing. Following his death, the
Petitioner was appointed new trial counsel. New trial counsel met with the Petitioner,
reviewed the discovery material, and had at least one jail visit with the Petitioner. The
Petitioner could not recall discussing possible defenses with trial counsel.
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The Petitioner recalled a police statement that he claimed he did not make and was
unsigned. Original defense counsel argued the motion to suppress regarding the statement.
The Petitioner did not recall discussing the statement with new trial counsel, and he averred
that he was unaware the statement would be used at trial. The Petitioner agreed that the
unsigned statement characterized the sexual relations between the Petitioner and the victim
as consensual.
The Petitioner testified that he was unaware of the superseding indictment on the
day of trial, but that trial counsel stated that “[the prosecution] just fixed the indictment.”
The Petitioner was in custody on the day of trial and did not want a continuance “if [the
prosecution] was going to add some more charges.” Despite not wanting a continuance,
the Petitioner testified that he did not have an opportunity to prepare additional theories of
defense regarding the superseding indictment.
The Petitioner’s case was originally set for trial in 2012, and the trial date was reset
“six or seven times.” The Petitioner testified that he did not ask for the continuances, but
“the victim and the witnesses” did not show up to the previous settings. He testified that
trial counsel informed him that he could not receive a sentence more than “seven point
two” years and that prior to this incident, he only had a juvenile record.
On cross-examination, the Petitioner did not recall a hearing about additional
charges prior to trial, but did recall speaking with trial counsel about whether to proceed to
trial. He also recalled discussing potential sentences with trial counsel after his
convictions, but prior to his sentencing hearing. The Petitioner testified that he met with
trial counsel in the courtroom multiple times. The Petitioner also testified to having prior
juvenile convictions for driving on a suspended license, evading arrest, theft of property
valued at more than $500, and reckless endangerment. The Petitioner also agreed that he
had two pending felony charges of aggravated assault and aggravated burglary at the time
of trial.
Trial counsel testified that she was licensed in 2012 and had worked at the Public
Defender’s Office since 2012. In 2015, she began handing felony cases. She recalled
being assigned the Petitioner’s case following the death of original defense counsel. At
the time of the Petitioner’s trial, she had been first chair in two felony jury trials. She was
assisted by another Public Defender who had twenty years of experience and had been in
involved in “close to two hundred” felony trials.
At the time trial counsel was appointed, the Petitioner’s case had been pending for
“at least a couple of years” and a preliminary hearing had already been held. The trial date
was set, and a motion to suppress the police statement had already been heard at the time
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of her appointment. Trial counsel did not believe a motion to reconsider the motion to
suppress would have been proper. Trial counsel recalled reviewing all discovery materials
with the Petitioner, meeting at her office multiple times, and meeting in jail multiple times
after the Petitioner was rearrested.
Trial counsel recalled a plea offer of three years’ probation for attempted rape. Trial
counsel and assisting counsel met with the Petitioner “at least once, and maybe a couple of
times” to discuss the offer. The Petitioner would not accept the offer and decided to
proceed to trial.
Following the superseding indictment, trial counsel had a discussion with the
Petitioner about asking for a continuance. Based upon trial preparations with consent as
the defense theory, trial counsel did not ask for a continuance, nor did she renew her motion
for a preliminary hearing. Trial counsel and the Petitioner decided to proceed to trial. Trial
counsel was not surprised by the superseding indictment based on the discovery materials.
Trial counsel made the strategic decision to “own the statement” that the Petitioner and the
victim had consensual sex. At trial, she recalled cross-examining the victim about any and
all issues that were admissible at trial. Trial counsel testified that despite no witnesses to
the incident, individuals were able corroborate the victim’s story at trial.
Trial counsel recalled having discussions with the Petitioner about his possible
sentencing range after he was convicted, and she advised the Petitioner that he would be
sentenced as a range one offender and could be sentenced from eight to twelve years. Trial
counsel was aware of the Petitioner’s prior convictions, but was also aware that those
would not have been used to determine his sentencing range. Trial counsel called a few of
the Petitioner’s family members to testify at his sentencing hearing and argued for a
mitigated offender range.
The post-conviction court denied the petition in a written order on May 11, 2020.
The post-conviction court credited trial counsel’s testimony that she was preparing for trial
with a theory of consent when she was informed of the superseding indictment and that she
did not think about renewing the motion for a new preliminary hearing on the morning of
trial. The post-conviction court found trial counsel’s decision reasonable because the new
charges did not change the defensive strategy at trial.
The post-conviction court did not find trial counsel ineffective for “embracing” the
unsigned police statement. The Petitioner admitted that he did not sign the statement when
he found out he was going to be charged with rape. Trial counsel and the Petitioner both
testified that trial counsel discussed trial strategy and that the statement was used in the
defense theory of consent.
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The post-conviction court credited trial counsel’s testimony that she was aware of
the Petitioner’s prior class E felony convictions, was assisted by a “seasoned” attorney, and
would not have advised him that he would be sentenced as a mitigated offender.
Additionally, the post-conviction court found that even if the Petitioner had been advised
that he would be sentenced as a mitigated offender, he failed to show that he was prejudiced
by this advice.
The post-conviction court concluded that trial counsel was not ineffective for failing
to move for a continuance after the superseding indictment was filed. The superseding
indictment did not include any additional charges that would have added facts or an offense
that was not reasonably foreseeable. Trial counsel testified that nothing in the superseding
indictment was unexpected and that it did not change her trial defense strategy. The post-
conviction court found that trial counsel was prepared for trial and that the Petitioner was
not prejudiced by trial counsel’s decision not to request a continuance.
Finally, the post-conviction court found that the issue related to the trial court’s
considering pending cases as evidence of ongoing criminal conduct for enhanced
sentencing was previously determined on appeal and that the Petitioner was not entitled to
relief.
The Petitioner timely filed a notice of appeal. The case is now before us for review.
ANALYSIS
On appeal, the Petitioner argues that trial counsel was ineffective because she failed
to explain the elements of the additional offenses charged in the superseding indictment.
The State argues that counsel was not ineffective.
Post-conviction relief is available when a “conviction or sentence is void or voidable
because of the abridgment of any right guaranteed by the Constitution of Tennessee or the
Constitution of the United States.” Tenn. Code Ann. § 40-30-103. Criminal Petitioners
are constitutionally guaranteed the right to effective assistance of counsel. Dellinger v.
State, 279 S.W.3d 282, 293 (Tenn. 2009) (citing U.S. Const. amend. VI; Cuyler v. Sullivan,
446 U.S. 335, 344 (1980)). When a claim of ineffective assistance of counsel is made
under the Sixth Amendment to the United States Constitution, the burden is on the
petitioner to show (1) that counsel’s performance was deficient and (2) that the deficiency
was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v.
Fretwell, 506 U.S. 364, 368-72 (1993). “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.” Goad v. State, 938 S.W.2d 363, 370 (Tenn.
1996). The Strickland standard has been applied to the right to counsel under article I,
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section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn.
1989).
Deficient performance requires a showing that “counsel’s representation fell below
an objective standard of reasonableness,” despite the fact that reviewing courts “must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 688-89. When a court reviews
a lawyer’s performance, it “must make every effort to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s conduct, and to evaluate the
conduct from the perspective of counsel at that time.” Howell v. State, 185 S.W.3d 319,
326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689). We will not deem counsel to have
been ineffective merely because a different strategy or procedure might have produced a
more favorable result. Rhoden v. State, 816 S.W.2d 56, 60 (Tenn. Crim. App. 1991). We
recognize, however, that “deference to tactical choices only applies if the choices are
informed ones based upon adequate preparation.” Cooper v. State, 847 S.W.2d 521, 528
(Tenn. Crim. App. 1992) (citing Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)).
As to the prejudice prong, the petitioner must establish “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Vaughn v. State, 202 S.W.3d 106, 116 (Tenn. 2006) (citing Strickland, 466
U.S. at 694). “A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” Strickland, 466 U.S. at 694. “That is, the petitioner must establish that
his counsel’s deficient performance was of such a degree that it deprived him of a fair trial
and called into question the reliability of the outcome.” Pylant v. State, 263 S.W.3d 854,
869 (Tenn. 2008) (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999)). “A reasonable
probability of being found guilty of a lesser charge . . . satisfies the second prong of
Strickland.” Id.The burden in a post-conviction proceeding is on the petitioner to prove his
allegations of fact supporting his grounds for relief by clear and convincing evidence.
Tenn. Code Ann. § 40-30-110(f); see Dellinger, 279 S.W.3d at 293-94. On appeal, we are
bound by the post-conviction court’s findings of fact unless we conclude that the evidence
in the record preponderates against those findings. Fields v. State, 40 S.W.3d 450, 456
(Tenn. 2001). Additionally, “questions concerning the credibility of witnesses, the weight
and value to be given their testimony, and the factual issues raised by the evidence are to
be resolved” by the post-conviction court. Id. Because they relate to mixed questions of
law and fact, we review the post-conviction court’s conclusions as to whether counsel’s
performance was deficient and whether that deficiency was prejudicial under a de novo
standard with no presumption of correctness. Id. at 457.
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We agree with the post-conviction court that counsel was not deficient in her
representation of the Petitioner. Trial counsel testified that following the superseding
indictment, she and the Petitioner discussed how the two new charges were foreseeable
and that the defense of consent would remain the same for the two new rape charges. The
record supports the post-conviction court’s finding that trial counsel had met with the
Petitioner, was prepared for trial, and made a reasonable decision regarding trial strategy
with the Petitioner’s help.
Additionally, the Petitioner’s statement in his brief that “[h]ad trial counsel properly
explained the elements of the new offenses in the superseding indictment, it is unlikely [he]
would have elected to proceed to trial” is belied by his testimony at trial that after the
superseding indictment was filed, he did not want a continuance. The Petitioner offers no
argument or evidence of how the outcome would have changed had the two additional rape
charges been more thoroughly explained to him, and we do not discern any. The Petitioner
is not entitled to relief.
CONCLUSION
Based upon the foregoing, the judgment of the post-conviction court is affirmed.
D. KELLY THOMAS, JR., JUDGE
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