Lucien Samuel Sherrod v. State ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JULY 1999 SESSION
September 2, 1999
Cecil Crowson, Jr.
LUCIEN SHERROD ) Appellate Court Clerk
)
Appellant, ) No. 01C01-9808-CR-00328
)
) Davidson County
v. )
) Honorable Seth Norman, Judge
)
STATE OF TENNESSEE, ) (Post-Conviction)
)
Appellee. )
For the Appellant: For the Appellee:
Gregory D. Smith Paul G. Summers
One Public Square, Suite 321 Attorney General of Tennessee
Clarksville, Tn 37040 and
Lucian D. Geise
Assistant Attorney General of Tennessee
425 Fifth Avenue North
Nashville, TN 37243
Victor S. Johnson, III
District Attorney General
and
Jon Seaborg
Assistant District Attorney General
Washington Square, Suite 500
222 2nd Avenue North
Nashville, TN 37201-1649
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The petitioner, Lucien Sherrod, appeals as of right from the Davidson
County Criminal Court’s order denying him post-conviction relief from his 1994
conviction for first degree murder and the resulting sentence of life in prison without the
possibility of parole. The trial court granted the petitioner a delayed appeal of this
court’s affirmance of his conviction. See State v. Lucien Samuel Sherrod, 01C01-9505-
CR-00157, Davidson County (Tenn. Crim. App. Jan. 30, 1997). The petitioner
contends (1) that he received the ineffective assistance of counsel and (2) that we
should vacate and reinstate this court’s judgment in the direct appeal in order that he
may seek review by the Tennessee Supreme Court. We affirm the trial court.
The petitioner was convicted for murdering his estranged wife, who had
filed for divorce. She was found in her place of business with at least twenty-five stab
and cut wounds. She had six stab wounds to the back of the body. One went through
her spine into a lung while two went through her ribs into her lungs. Another wound
penetrated her esophagus. The pathologist testified that the victim received most of the
wounds while she was lying on the floor, and the wounds would have required
considerable force.
The petitioner primarily contends that his trial attorney inadequately
prepared for and presented evidence at the sentencing hearing.1 At the evidentiary
hearing, the petitioner complained about the lack of preparation for the sentencing
hearing. He said the attorney did not talk to relatives, employers, or neighborhood
1
The petitio ner’s brief in dica tes, w ithou t exp ress ly statin g, a c onc ern a bou t the p etition er’s
trial attorney’s approach at the guilt stage, but it gives no particulars other than a comment that the
decision not to pursue a self-defense strategy was a trial tactic. As the trial attorney testified at the
evidentiary hearing, under the evidence in the case, “a self defense argument . . . was almost frivolous,
just alm ost totally non-p revalent.”
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friends. He said he thought he had psychological problems, but his attorney only
arranged a short visit for an evaluation.
The trial attorney testified that his primary aim was to try to negate any
premeditation and deliberation evidence so as to reduce the offense to second degree
murder. As for sentencing, the attorney stated that he was not aware of the petitioner
having close family members. He said he recalled that the petitioner was on his own
during that period of time. Also, he stated that he did not believe the case called for a
mitigation expert, partly because he believed there was very little mitigation to pursue.
The attorney admitted that he inadvertently missed the deadline for appealing this
court’s decision in the direct appeal to the Tennessee Supreme Court.
The trial court found that the defendant’s trial attorney was not ineffective
at the sentencing phase. The trial court also found that the trial attorney inadvertently
failed to seek appellate review by our supreme court and ordered that the petitioner be
granted a delayed T.R.A.P. 11 appeal. See Tenn. Code Ann. § 40-30-213. The
petitioner did not file a T.R.A.P. 11 appeal but rather appealed the trial court’s post-
conviction determination to this court and requested that we affirm the trial court’s grant
of a delayed appeal.
Under the Sixth Amendment, when a claim of ineffective assistance of
counsel is made, the burden is upon the petitioner to show (1) that counsel’s
performance was deficient and (2) that the deficiency was prejudicial in terms of
rendering a reasonable probability that the result of the trial was unreliable or the
proceedings fundamentally unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S.
Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838,
842-44 (1993). The Strickland standard has been applied to the right to counsel under
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Article I, Section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417,
419 n. 2 (Tenn. 1989).
In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court
decided that attorneys should be held to the general standard of whether the services
rendered were within the range of competence demanded of attorneys in criminal
cases. Further, the court stated that the range of competence was to be measured by
the duties and criteria set forth in Beasley v. United States, 491 F.2d 687, 696 (6th Cir.
1974) and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also,
in reviewing counsel’s conduct, a “fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of hindsight, to reconstruct
the circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).
We also note that the approach to the issue of the ineffective assistance
of counsel does not have to start with an analysis of an attorney’s conduct. If prejudice
is not shown, we need not seek to determine the validity of the allegations about
deficient performance. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.
In a post-conviction case, the burden is on the petitioner to prove his
grounds for relief by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f).
On appeal, we are bound by the trial court’s findings unless we conclude that the
evidence preponderates against those findings. Black v. State, 794 S.W.2d 752, 755
(Tenn. Crim. App. 1990). The petitioner has the burden of illustrating how the evidence
preponderates against the judgment entered. Id.
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First, we conclude that the petitioner has not shown that the evidence
preponderates against the trial court’s finding that he received the effective assistance
of counsel. Although the petitioner claims that his attorney was ineffective for failing to
present mitigation evidence at the sentencing hearing, the petitioner did not present
such evidence at the evidentiary hearing. “When a petitioner contends that trial counsel
failed to discover, interview, or present witnesses . . . these witnesses should be
presented by the petitioner at the evidentiary hearing.” Black, 794 S.W.2d at 757.
Having failed to do so, the petitioner has not established prejudice. Id. at 758.
Next, the petitioner asks us to vacate and reinstate this court’s judgment
in the direct appeal in order to give him time to apply to the Tennessee Supreme Court
for permission to appeal. The state acknowledges that the trial court appropriately
granted the petitioner a delayed appeal, but it asserts that the issue is not properly
before us. The state contends that the petitioner should have filed his application for
permission to appeal within sixty days of the trial court’s order granting a delayed
appeal. Pursuant to Rule 28, § 9(D), Tenn. S. Ct., the petitioner had sixty days from the
trial court’s determination within which to seek supreme court review pursuant to Rule
11, T.R.A.P. That time has passed. However, we believe that we retain the jurisdiction
through this post-conviction appeal to grant the delayed appeal pursuant to Rule 28, §
9(D), as well, under the trial court’s findings of fact. Therefore, in the interest of justice,
we grant the petitioner a delayed appeal in State v. Lucien Samuel Sherrod, No.
01C01-9505-CR-00157, Davidson County (Tenn. Crim. App. JAN. 30, 1997).
In consideration of the foregoing and the record as a whole, we affirm the
trial court’s denial of post-conviction relief and the grant of a delayed appeal to the
Tennessee Supreme Court.
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__________________________
Joseph M. Tipton, Judge
CONCUR:
___________________________
James Curwood W itt, Jr., Judge
___________________________
John Everett W illiams, Judge
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