Harry Pearson v. State of Tennessee

10/29/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs September 8, 2021
HARRY PEARSON v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 10-07805 Glenn Ivy Wright, Judge
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No. W2020-01037-CCA-R3-PC
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The petitioner, Harry Pearson, appeals the denial of his post-conviction petition, arguing
the post-conviction court erred in finding he received the effective assistance of counsel at
trial and on appeal. Upon our review of the record, arguments of the parties, and pertinent
authorities, we affirm the denial of the petition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J. ROSS DYER, J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER
and CAMILLE R. MCMULLEN, JJ., joined.
Chloe P. Hawes and Claiborne Ferguson, Memphis, Tennessee, for the appellant, Harry
Pearson.
Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Senior Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Facts and Procedural History
I. Trial
The petitioner, Harry Pearson, was convicted by a Shelby County Criminal Court
jury of aggravated robbery and especially aggravated kidnapping, for which he received an
effective sentence of thirty years’ confinement. On direct appeal, this Court set forth the
relevant facts as follows:
A Shelby County grand jury indicted [the petitioner] and the co-
defendant, Jeffrey Bensley, for the especially aggravated kidnapping and
aggravated robbery of the victim, Steven Moorhead. A jury convicted [the
petitioner] of both offenses. The trial court sentenced [the petitioner] to thirty
years as a violent offender for especially aggravated kidnapping and twenty
years as a multiple offender for aggravated robbery and ordered that the
sentences run concurrently with each other.
The State first presented the victim as a witness at trial. The victim
had relocated to Memphis on May 1, 2010, and was temporarily living at the
Calvary Rescue Mission. [The petitioner] was also a temporary resident at
the mission. The victim testified that he and [the petitioner] would eat
breakfast together at the shelter. The victim would then drive [the petitioner]
around town to buy heroin. The victim would park somewhere so [the
petitioner] could “shoot up” in the car. [The petitioner] helped the victim
become familiar with Memphis by showing him where he could get food and
how he could survive being homeless in the city. [The petitioner] asked the
victim to “help [him] out” when the victim received his social security
disability check. The victim agreed, thinking that it would be nice to repay
[the petitioner] for helping him.
On May 19, 2010, the victim planned to pick up his social security
check from the shelter when the mail arrived around 2:00 p.m., cash the
check, and give [the petitioner] $100 at the shelter that evening. That
morning, the victim encountered the co-defendant at the downtown library.
The victim knew the co-defendant through [the petitioner]. The co-defendant
told the victim that [the petitioner] was looking for him. Shortly thereafter,
the victim saw [the petitioner] on the street. The two men entered the
victim’s vehicle, and [the petitioner] asked the victim to pick up the co-
defendant. The victim drove to the library and picked up the co-defendant.
They “killed time” until the victim could receive his check from the shelter.
After the victim received his check, the three men went to Ace Cash Express
so he could cash it. The victim gave [the petitioner] $100, kept $80 in cash
for himself, and deposited the remainder of the check on his debit card. They
all left together in the victim’s car and drove to the home of the co-
defendant’s mother to retrieve a tent.
When the three men arrived at the residence, the victim turned off the
ignition. [The petitioner] turned around to the co-defendant, who was in the
backseat, and asked if he was “ready.” [The petitioner] then grabbed the
victim’s right forearm with both hands, and the co-defendant held a knife and
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duct tape. The victim recognized the knife as belonging to [the petitioner].
The victim began to struggle, at which time the co-defendant struck a
“glancing blow” with the knife to the victim’s collarbone and hit the victim
in the face. [The petitioner] then placed the victim in a “choker hold.” As
he started to lose consciousness, the victim assured [the petitioner] he would
cooperate. The victim testified that he wanted to be sure he remained
conscious. [The petitioner] “let up a little bit,” and the co-defendant taped
the victim’s legs together and taped his wrists together behind his back. [The
petitioner] and the co-defendant then reclined the driver’s seat and had the
victim slide into the backseat of his car. [The petitioner] sat in the driver’s
seat, and the co-defendant entered the rear passenger side. He held a knife
to the victim’s rib cage. The co-defendant then removed the victim’s wallet
and took his debit card, cash, and cellular telephone.
[The petitioner] drove the victim’s car to a nearby store with an
automated teller machine (“ATM”) and asked the victim for his personal
identification number. [The petitioner] entered the store and withdrew $300
from the victim’s account using his debit card. The victim overheard [the
petitioner] talking on the telephone, making arrangements to purchase
heroin. [The petitioner] drove to another location and purchased eleven bags
of heroin for $100. [The petitioner] told the victim that the victim should
leave Memphis and not return. When the victim did not respond to [the
petitioner], [the petitioner] reached from the front seat, “backhanded” the
victim, and asked if the victim understood. [The petitioner] then drove to the
parking lot of the Bass Pro Shop, turned off the ignition, removed the keys,
placed them on the floorboard, and exited the vehicle with the co-defendant.
After approximately ten minutes had passed, the victim opened the back seat
door, exited, and screamed for help. Individuals in a gold Honda stopped to
render aid and tried to remove the duct tape with a key. Another man in a
white car arrived and cut the victim free with a knife. One of the individuals
summoned the police, who arrived ten to fifteen minutes later.
On cross-examination, the victim admitted he had previously been to
the residence of the co-defendant’s mother. The victim, [the petitioner], and
the co-defendant had gone there to smoke crack cocaine together. The victim
denied that he was involved with [the petitioner], the co-defendant, and
others in a “boost ring” in which they would steal Red Bull energy drinks
from Walmart stores. He also denied that he, [the petitioner], and the co-
defendant staged the offenses in question to obtain restitution from the
Victim’s Compensation Fund. The victim admitted that approximately six
months after the incident, he and the co-defendant ate dinner at the same table
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at a homeless shelter but stated he was unaware that the co-defendant was
seated at that table until after he was seated.
On redirect examination, the victim testified that he wondered
whether he was going to live through the ordeal and was concerned that [the
petitioner] and the co-defendant would stab him before they left the car.
Teresa Quintero, the driver of the gold Honda, testified that she
encountered the victim in the parking lot of the Bass Pro Shop. She observed
that he appeared as though he had been in a fight: his hair was messy, his
shirt was torn, and he was bleeding. She telephoned 9-1-1 while her son
attempted to unwrap the duct tape. Ms. Quintero then located a pair of
fingernail clippers in her glove compartment that she used to clip the edge of
the tape and remove it. They had just removed the duct tape when police
arrived.
Russell Young testified that he was at the Bass Pro Shop on the day
in question and observed two men running away from a black car as he was
leaving the parking lot. He testified, “[Y]ou could tell by the look on their
face[s] or the way they were running [that] something was going on.” Mr.
Young followed the two men around the corner until they stopped at a Motel
6 and entered the lobby. He then returned to the Bass Pro Shop and asked
the victim what had happened. Mr. Young remained on the scene and gave
police a statement. He also identified [the petitioner] in court.
James Culpepper, an officer with the Memphis Police Department,
responded to the robbery call at the Bass Pro Shop parking lot. When he
arrived, he observed that the victim was visibly shaken, frightened, and upset
and still bore evidence of duct tape around his wrists and ankles. The victim
provided the names of the suspects and a description of what they were
wearing. Mr. Young returned to the scene and informed police of the
direction in which the suspects fled.
Richard Lunati with the Memphis Police Department responded to the
call for assistance at the Bass Pro Shop parking lot. He then proceeded to
the Motel 6, the location that Mr. Young had witnessed the suspects enter.
Officer Lunati ascertained the room number of the motel room they rented
and knocked on the door. He subsequently detained [the petitioner] and the
co-defendant, recovering a sum of money during the frisk of [the petitioner].
Lyndi Sugg with the district attorney general’s office testified that she
was employed as a victim-witness coordinator. She stated that the victim
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had not completed the necessary paperwork to obtain compensation as the
victim of a crime. Moreover, he would not have been entitled to receive
compensation directly; any compensation is sent directly to the provider of
medical care in a case involving bodily injury.
Officer David Galloway with the Memphis Police Department Crime
Scene Division photographed [the petitioner’s] room at the Motel 6. Officers
also collected evidence, including a pocket knife, a bag, and some vitamins.
Officer Lee Wiggins of the Memphis Police Department testified that
officers obtained a search warrant for the hotel room at the Motel 6. During
the search, he recovered the receipt from the motel room and a sum of money.
At trial, he identified $180 contained in one envelope and $148 contained in
a second envelope that he recovered from the co-defendant and [the
petitioner], respectively. Officer Wiggins recovered three empty foil packets
that would be used to package heroin, a spoon with drug residue on it, and a
plastic bag with marijuana residue in it. He also recovered 2.4 grams of
heroin from the co-defendant and 0.66 gram from [the petitioner].
The State rested its case and the defense presented no evidence.
Following deliberations, the jury returned verdicts of guilty on both counts
of the indictment. The State and defense counsel reached an agreement on
[the petitioner’s] sentence, recommending to the trial court a sentence of
thirty years at 100% for especially aggravated kidnapping and twenty years
as a multiple offender at 35% for aggravated robbery. The trial court
accepted the agreed-upon sentence.
State v. Harry Pearson, No. W2011-02598-CCA-R3-CD, 2012 WL 5830702, at *1-3
(Tenn. Crim. App. Nov. 16, 2012) (footnote omitted).
II. Post-Conviction Hearing
On January 21, 2014, the petitioner filed a pro se petition for post-conviction relief
and an accompanying memorandum in support thereof.1 After the appointment of counsel,
the petitioner filed an amended petition in which he claimed trial counsel was ineffective
for many reasons and alleged that “[t]he trial court expressed its bias in its charge to the
jury.” The post-conviction court appointed new counsel, and the petitioner filed a second
1
The record indicates the post-conviction court treated the petitioner’s pro se “Request for
Discovery, Inspection, and; Notice of Intent to Use Evidence in Post-Conviction Proceeding” as a timely-
filed petition for post-conviction relief.
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amended petition for post-conviction relief. In the second amended petition, the petitioner
alleged, in pertinent part, that trial counsel failed to: “effectively cross-examine the alleged
victim witness [], even though he made inconsistent statements on the stand”; “impeach
several other State witnesses, where he had an opportunity”; “object[] to several instances
of prosecutorial misconduct”; and “raise the White issue” both at trial and on appeal.2 The
post-conviction court held an evidentiary hearing to address the allegations during which
trial counsel and the petitioner testified.
Trial counsel represented the petitioner at trial and on appeal. Prior to trial, the
petitioner received “an exceptionally high” and “unreasonable offer” of twenty years. Trial
counsel discussed the offer with the petitioner, advised that the petitioner could face
consecutive sentences if convicted at trial, and recommended the petitioner accept the
offer, noting “the evidence against [the petitioner] . . . was overwhelming . . . [b]ecause
basically he had someone who knew him and someone he basically lived with that was
testifying against him.” The petitioner, however, rejected the offer. Trial counsel
continued negotiating on the petitioner’s behalf and even tried to convince the petitioner to
agree to a sentence of ten or twelve years on the day of trial with the hope that the
prosecutor would accept it. The petitioner again refused and told trial counsel, “I wouldn’t
even take 10 years today if they offered.” After being convicted, trial counsel was
successful in securing concurrent sentences for the petitioner which resulted in an effective
thirty-year sentence.
Regarding his defense strategy, trial counsel hired an investigator and attempted to
research the victim’s criminal history in an effort to suggest the victim participated in
scams with the petitioner. More specifically, trial counsel attempted to show the victim
“had consented to being kidnapped and robbed” as part of “a scam to fleece the victim
compensation fund.” However, when trial counsel questioned the victim regarding his
participation in a scam, which involved stealing groceries from Kroger, the victim “pled
the Fifth on the stand.” In doing so, trial counsel believed he successfully impeached the
victim, noting “[t]hat -- by him pleading the Fifth on the stand it kind of had the effect of,
you know, impeaching him with being prior bad acts. I mean, that had the intended effect
that we wanted.”
Regarding the petitioner’s criminal history, trial counsel filed a “609 motion” to
exclude three prior drug convictions. However, after a hearing, the trial court ruled that
the petitioner’s prior convictions would be admissible if he testified during trial as the
convictions were considered crimes of dishonesty.
2
362 S.W.3d 559, 578 (Tenn. 2012) (instructing that “trial courts must ensure that juries return
kidnapping convictions only in those instances in which the victim’s removal or confinement exceeds that
which is necessary to accomplish the accompanying felony”).
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Trial counsel did not request any specific jury instructions and did not object to the
jury instructions during trial. Trial counsel admitted the jury did not have the opportunity
to review the case under the White instruction as “White had not been decided at that point
in time.” Regardless, trial counsel did not believe he could have successfully dismissed
the especially aggravated kidnapping charge based upon the facts of the case. Trial counsel
explained:
And then in recollection -- in my understanding of the facts of the case
is that they kidnapped . . . [the victim] and drove him out into the county
where they then got his debit card from him.
They drove him back in the city; went to an ATM machine and they
got the money out. So, at that point in time the aggravated robbery had been
completed. And then they drove him somewhere else where he was bound
and they left him confined in the vehicle, bound in the back seat of the car.
Trial counsel acknowledged the White opinion was issued while the petitioner’s
direct appeal was pending. However, as noted above, trial counsel did not amend the
motion for a new trial or appellate brief after the White opinion was issued because he was
“of the opinion there was a kidnapping when they grabbed [the victim] off the street and
drove him out in the country” and “there was a kidnapping after the ATM withdraw.” Trial
counsel noted this Court reviewed the White issue under plain error on direct appeal, and
found no error. The trial court also stated that even under a lesser standard, he did not
believe the petitioner would be entitled to relief based upon the facts of the case.
The petitioner also testified, stating trial counsel “tried to feed” him the twenty-year
offer but that he would not have even accepted a fifteen-year offer. Instead, the petitioner
told trial counsel he would “take a 10-year plea offer at 35 percent because [he] was a
Range 2 offender.” The petitioner stated he now knows the crimes for which he was
charged and convicted carry 85% service requirements.
The petitioner admitted to having three prior convictions for purchasing heroin. The
petitioner denied discussing these convictions with trial counsel and stated they did not
discuss whether he would testify or not until after losing the 609 hearing. The petitioner
claimed he would have testified had the trial court ruled his prior drug convictions were
inadmissible.
The petitioner described the victim as a drifter and did not believe trial counsel or
the investigator looked into the victim’s criminal record, suggesting they “only looked at
my case briefly as to run it through with no discussion at all.” The petitioner stated trial
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counsel was “ready for [him to] cop out and to take a plea bargain for something I didn’t
feel was fair, which I know I didn’t commit those crimes so I wasn’t gone (sic) take it.”
After its review, the post-conviction court denied the petition, both orally and in
writing, and the petitioner timely appealed.
Analysis
On appeal, the petitioner contends the post-conviction court erred in finding he
received the effective assistance of counsel. Specifically, the petitioner argues trial counsel
was ineffective for failing to raise a White jury instruction issue at trial and on appeal. The
State submits the petitioner has failed to meet the burden required of him and, therefore, is
not entitled to relief. Upon our review of the record and the applicable law, we affirm the
ruling of the post-conviction court.
The petitioner bears the burden of proving his post-conviction factual allegations by
clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f). The findings of fact
established at a post-conviction evidentiary hearing are conclusive on appeal unless the
evidence preponderates against them. Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996).
This Court will not reweigh or reevaluate evidence of purely factual issues. Henley v.
State, 960 S.W.2d 572, 578 (Tenn. 1997). However, appellate review of a trial court’s
application of the law to the facts is de novo, with no presumption of correctness. See Ruff
v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel
presents mixed questions of fact and law. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
Thus, this Court reviews the petitioner’s post-conviction allegations de novo, affording a
presumption of correctness only to the post-conviction court’s findings of fact. Id.; Burns
v. State, 6 S.W.3d 453, 461 (Tenn. 1999).
To establish a claim of ineffective assistance of counsel, the petitioner must show
both that counsel’s performance was deficient and that counsel’s deficient performance
prejudiced the outcome of the proceedings. Strickland v. Washington, 466 U.S. 668, 687
(1984); State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting the standard
for determining ineffective assistance of counsel applied in federal cases is also applied in
Tennessee). The Strickland standard is a two-prong test:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s
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errors were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.
466 U.S. at 687. In order for a post-conviction petitioner to succeed, both prongs of the
Strickland test must be satisfied. Id. Thus, courts are not required to even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” Id.; see
also Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (stating that “a failure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).
A petitioner proves a deficiency by showing “counsel’s acts or omissions were so
serious as to fall 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)). The prejudice prong of the Strickland test is
satisfied when the petitioner shows there is a reasonable probability, or “a probability
sufficient to undermine confidence in the outcome,” that “but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at
694. However, “[b]ecause of the difficulties inherent in making the evaluation, a court
must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action ‘might be considered sound trial
strategy.’” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
The issues presented in this appeal concern the standard adopted by our supreme
court in State v. White, 362 S.W.3d 559, 578 (Tenn. 2012). In White, our supreme court
held that “trial courts must ensure that juries return kidnapping convictions only in those
instances in which the victim’s removal or confinement exceeds that which is necessary to
accomplish the accompanying felony.” Id. Thus, “[i]nstructions should be designed to
effectuate the intent of the General Assembly to criminalize only those instances in which
the removal or confinement of a victim is independently significant from an accompanying
felony, such as rape or robbery.” Id. The supreme court stated:
When jurors are called upon to determine whether the State has
proven beyond a reasonable doubt the elements of kidnapping, aggravated
kidnapping, or especially aggravated kidnapping, trial courts should
specifically require a determination of whether the removal or confinement
is, in essence, incidental to the accompanying felony or, in the alternative, is
significant enough, standing alone, to support a conviction.
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Id. “In our view, an instruction of this nature is necessary in order to assure that juries
properly afford constitutional due process protections to those on trial for kidnapping and
an accompanying felony.” Id.Here, the petitioner asserts trial counsel was ineffective for failing to request the
White instruction at trial. However, as noted by the State, the petitioner’s trial occurred in
2011, and our supreme court did not issue the White opinion until March 2012. Id. at 559.
As such, trial counsel could not have requested the White instruction at the time of the
petitioner’s trial and cannot be found to have been deficient for failing to do so. See Adkins
v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994) (finding trial counsel “could not
have been deficient by his failure to anticipate the subsequent rulings of the United States
Supreme Court” regarding jury selection and jury instruction issues that were not
proscribed at the time of trial). Accordingly, we find no merit to this claim of
ineffectiveness.
Next, the petitioner asserts trial counsel was ineffective for failing to raise the White
issue on direct appeal, arguing he was prejudiced as a result because “a reasonable
probability exists that, had the jury been properly instructed on the White issue, the jury
would have rendered a more favorable judgment.” The State submits the petitioner is not
entitled to relief because “the petitioner’s conviction of especially aggravated kidnapping
was not incidental to the aggravated robbery and a White instruction therefore would not
have changed the outcome of the proceedings.” Upon our review, we agree with the State.
The record indicates trial counsel did not raise a White issue on appeal because he
did not believe it would have been successful. Despite trial counsel’s failure to raise the
issue on direct appeal, this Court reviewed the White issue under the doctrine of plain error,
stating:
In this case, the trial court instructed the jury with respect to especially
aggravated kidnapping using the previous pattern jury instruction. Thus, the
trial court erred in its charge to the jury. However, because [the petitioner]
did not raise a White issue, we must analyze this issue under our plain error
standard of review. Our supreme court formally adopted the following test
for reviewing claims of plain error:
The Court of Criminal Appeals has developed five
factors to consider when deciding whether an error constitutes
“plain error” in the absence of an objection at trial: “(a) the
record must clearly establish what occurred in the trial court;
(b) a clear and unequivocal rule of law must have been
breached; (c) a substantial right of the accused must have been
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adversely affected; (d) the accused did not waive the issue for
tactical reasons; and (e) consideration of the error is ‘necessary
to do substantial justice.’” State v. Smith, 24 S.W.3d 274, 282
(Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626, 641-
42 (Tenn. Crim. App. 1994)). All five factors must be
established by the record before a court will find plain
error. Id. Complete consideration of all the factors is not
necessary when clearly at least one of the factors cannot be
established by the record.
Based on our review, we determine that consideration of this issue
under plain error review is not “necessary to do substantial justice.” The jury
convicted [the petitioner] of especially aggravated kidnapping and
aggravated robbery. The proof established that [the petitioner] and the co-
defendant lured the victim to the residence of the co-defendant’s mother
under the guise of picking up a tent. While in the driveway of the residence,
[the petitioner] and the co-defendant bound the victim with duct tape,
threatened him with a knife, struck the victim’s collarbone with a knife, and
hit the victim in the face. They stole the victim’s cellular telephone and
wallet, which contained his debit card and cash. [The petitioner] drove to an
ATM machine and demanded the victim’s personal identification number.
After driving around Memphis, they abandoned the victim in his vehicle
while he was still bound with duct tape. Based on the facts of this case, the
failure to charge the jury that confinement of the victim for the especially
aggravated kidnapping must not have been essentially incidental to the
aggravated robbery is harmless beyond a reasonable doubt. Accordingly,
[the petitioner’s] dual convictions of especially aggravated kidnapping and
aggravated robbery are affirmed.
Harry Pearson, 2012 WL 5830702, at *6 (citations omitted).
In denying relief as to the White issue, the post-conviction court concluded “[t]his
issue has been determined,” and we agree. See Tenn. Code Ann. § 40-30-106(f) (“Upon
receipt of a petition in proper form, or upon receipt of an amended petition, the court shall
examine the allegations of fact in the petition. If the facts alleged, taken as true, fail to
show that the petitioner is entitled to relief or fail to show that the claims for relief have
not been waived or previously determined, the petition shall be dismissed.”). As
demonstrated above, it is undisputed that trial counsel erred by failing to raise the White
issue on direct appeal. However, this Court analyzed the issue and determined the trial
court’s failure to charge the jury in accordance with White was harmless because the facts
demonstrated that the victim’s confinement was not incidental to the aggravated robbery.
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The post-conviction court also reviewed the petitioner’s dual convictions and concluded
the especially aggravated kidnapping was “greater than incidental” to the aggravated
robbery committed by the petitioner, stating “the [petitioner] robbed the victim at gun
point, bound him with tape and drove him to several locations around town while obtaining
money.” Furthermore, trial counsel testified that he did not raise the White issue on appeal
because of his belief that the kidnapping was not incidental to the robbery and occurred
both “when [the petitioner and the co-defendant] grabbed [the victim] off the street and
drove him out in the country” and “after the ATM withdraw.” Additionally, this Court
determined the evidence was sufficient to support the petitioner’s conviction for especially
aggravated kidnapping:
The evidence, viewed in the light most favorable to the State,
demonstrates that the victim willingly transported [the petitioner] and the co-
defendant to the residence of the codefendant’s mother. However, once
there, [the petitioner] and the co-defendant forcibly restrained the victim,
threatened him with and cut him with a knife, and bound his wrists and ankles
with duct tape. After robbing him, [the petitioner] drove the victim’s car,
with the victim still inside, to another location to purchase drugs and to a
third location to use the victim’s debit card. The jury’s verdict of guilty
credits the State’s proof. We conclude that the evidence was sufficient to
establish that [the petitioner] confined the victim unlawfully, substantially
interfered with his liberty, and accomplished the act by use of a deadly
weapon.
Harry Pearson, 2012 WL 5830702, at *4.
Though the petitioner argues he was prejudiced by trial counsel’s failure to raise the
White issue on appeal, he has failed to provide any proof supporting this claim. Instead,
the record indicates trial counsel believed the petitioner’s convictions of especially
aggravated kidnapping and aggravated robbery were separate and distinct crimes, and the
same was found by this Court on direct appeal and by the post-conviction court. Therefore,
the petitioner has not established a reasonable probability that, had trial counsel raised the
White issue on direct appeal, the outcome of the proceedings would have been different.
Strickland, 466 U.S. at 694. The petitioner is not entitled to relief.
Conclusion
Based upon the foregoing authorities and reasoning, the judgment of the post-
conviction court is affirmed.
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____________________________________
J. ROSS DYER, JUDGE
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