D. KELLY THOMAS, Jr., J.
The Petitioner, Craig Abston, appeals as of right from the Shelby County Criminal Court's denial of his petition for post-conviction relief. On appeal, he raises the same lone issue that he raised in his petition and at the evidentiary hearing: that trial counsel was ineffective for failing to file a motion to suppress a statement given to police following his arrest. The State first challenges our jurisdiction to hear this appeal, and, alternatively, contends that the Petitioner has failed to prove that the post-conviction court erred in denying him relief. In reply, the Petitioner disagrees with the State's jurisdictional argument and asks that we proceed to consider the issue on its merits. Upon careful review, we reject the State's jurisdictional challenge. After considering the merits of the Petitioner's claim, we conclude that he is not entitled to relief. Accordingly, the judgment of the post-conviction court is affirmed.
This case comes before us with a complex and protracted procedural history. Evidence adduced at the Petitioner's 2004 trial showed that on October 5, 2001, the Petitioner was the passenger in a blue sedan which rear-ended a red Crown Victoria driven by the victim.
Don Cottrell testified that he was driving a vehicle located two cars behind the blue car when he witnessed that car rear-end a red car that was attempting to turn.
The victim sustained a lethal 9 millimeter gunshot wound to his chest.
Sergeant Nathan Berryman took the then sixteen-year-old Petitioner's statement in the presence of his mother.
The Petitioner was ultimately convicted of one count of second degree murder and two counts of attempted second degree murder. He was sentenced to twenty years for the second degree murder conviction, twelve years for one attempted murder conviction, and eight years for the remaining attempted murder conviction. The twelve-year sentence was ordered to be served concurrently with the twenty-year sentence, and the eight-year sentence was to be served consecutively to that sentence, resulting in a total effective sentence of twenty-eight years.
On September 7, 2005, the Petitioner, with the assistance of counsel, filed a timely petition for post-conviction relief. The petition alleged multiple grounds of ineffective assistance of his trial counsel, including counsel's failure to: (1) file a timely motion for new trial; (2) file a notice of appeal; (3) adequately communicate regarding investigation and preparation of the Petitioner's case; (4) investigate witnesses and secure their appearances at trial; (5) consult mental health experts to determine whether the Petitioner suffered from diminished mental capacity; (6) seek expert services; (7) file any meaningful evidentiary motions; (8) make appropriate objections; and (9) seek all appropriate jury instructions. On June 9, 2006, without holding an evidentiary hearing, the post-conviction court entered an order finding that counsel's failure to pursue appellate review of the Petitioner's convictions was ineffective assistance. The court noted that the pleadings and the trial record supported the Petitioner's allegation with respect to counsel's failure to perfect an appeal—the motion for new trial was filed late and no notice of appeal was ever filed. The post-conviction court granted a delayed appeal, giving the Petitioner an opportunity to file a motion for new trial in accordance with Tennessee Code Annotated section 40-30-113.
On July 7, 2006, a motion for new trial was filed, and that motion was denied on December 1, 2006. A timely appeal to this court followed. On appeal, a panel of this court reversed the trial court's order of consecutive sentences and remanded to the trial court for a new sentencing hearing.
Upon remand, the trial court held a sentencing hearing and again sentenced the Petitioner to consecutive terms based on the dangerous offender classification, resulting in a total effective sentence of twenty-eight years. The Petitioner again appealed, and this court affirmed the imposition of consecutive sentences.
On September 5, 2012, the Petitioner filed a pro se petition for post-conviction relief, utilizing the standard form available pursuant to Tennessee Supreme Court Rule 28, Appendix A. In the petition, he acknowledged that he had previously filed a petition for post-conviction relief, although when asked to provide details regarding that petition, he listed the Tennessee Supreme Court's April 12, 2012 denial of his Tennessee Rule of Appellate Procedure 11 application following his delayed direct appeal. In the section of the form asking whether he had received an evidentiary hearing on his petition, he wrote, "N/A." In another section of the form, when asked to provide the name of any attorneys who had previously represented him, he included the name of the attorney who represented him on his 2005 petition. As grounds for relief, he placed a check mark next to the following listed grounds: "[c]onviction was based on use of coerced confession[,] . . . on use of evidence obtained pursuant to an unlawful arrest[,] . . . on a violation of the privilege against self-incrimination[,] . . . on the unconstitutional failure of the prosecution to disclose to defendant evidence favorable to defendant[,] . . . [and] illegal evidence."
There is no initial order appointing counsel in the appellate record, but on May 24, 2013, the post-conviction court entered an order allowing an attorney to withdraw and substituting another attorney. On July 17, 2013, another order was entered allowing the second attorney to withdraw and appointing a third attorney ("post-conviction counsel") to the Petitioner's case. On September 26, 2014, an amended petition was filed with the assistance of post-conviction counsel.
At the September 26, 2014, evidentiary hearing, trial counsel
According to trial counsel, the Petitioner's father testified that his "son" gave him a gun to dispose of after the shooting. Trial counsel could not remember whether the Petitioner's father was referring to the Petitioner or his brother Renarld,
Trial counsel said that when the Petitioner gave his statement to the police, the Petitioner's mother was present. However, trial counsel said that because ten years had passed between the time of the trial and the evidentiary hearing, he had difficulty recalling the circumstances under which the statement was made. He did remember that the Petitioner's statement was that he shot at the victims after they began firing at the car the Petitioner was in, which supported a theory of self-defense.
Kim Green Abston, the Petitioner's mother, testified that she was present when the police came to her house to arrest the Petitioner. She said that, initially, two detectives came to the house and requested to speak with her other son, Renarld. According to Ms. Abston, she asked the officers whether they had a warrant, and when they replied in the negative, she told them that they could not talk to Renarld. Ms. Abston asked the detectives why they wanted to speak with Renarld, and they told her it was "about something that had happened Friday night." Ms. Abston testified that the detectives left and then "a police car pulled up." The newly-arrived officer told Ms. Abston that he had come "to transport [the Petitioner and Renarld] downtown." She said this was the first mention that the Petitioner was involved.
Ms. Abston said that the officer took both her sons to the police station. She drove to the station separately, and "by the time [she] made it downtown . . ., [the Petitioner] was already in the room handcuffed and had been questioned when [she] got here." According to Ms. Abston, she knew the Petitioner had been questioned by the time she arrived because, when she was taken to the room where the Petitioner was being held, she "could hear them" talking to the Petitioner through the door. Ms. Abston told the officers "they couldn't talk to [her] son without an attorney." According to Ms. Abston, the officers told her that she "couldn't afford an attorney." She said that the officers then took the Petitioner "to a room and [she] tried calling an attorney." Ms. Abston testified that the officers then presented her with "a sheet of paper telling [her] to sign it." She said that the paper contained "a statement [from the Petitioner] that had been typed up." Ms. Abston signed the statement after an officer told her that it was the Petitioner's statement, that she could not afford an attorney, that he was going to jail, "and that was that." She said that she did not read the statement before signing it.
The Petitioner testified that he and his brother were in the backyard of his mother's house when police came and asked to speak with Renarld. His mother summoned Renarld inside, and the Petitioner remained in the backyard. The Petitioner said that, from where he was standing in the backyard, he could hear his mother and brother talking to the detectives in the kitchen. The Petitioner heard the detectives ask Renarld if he knew "what happened Friday at the Whitehaven and Hamilton homecoming game," and Renarld gave a negative response. He also heard the detectives ask his mother who was in the backyard, and she named the Petitioner. The detectives asked Ms. Abston how old the Petitioner was, and she told them he was sixteen. She then asked the Petitioner to come inside the house.
According to the Petitioner, when he entered the house, Sergeant Barrom
Once at the station, the Petitioner was placed in an interrogation room, where he was left "for a long time," which he estimated was approximately two hours. Eventually, Sergeant Barrom reentered the room, and the Petitioner asked whether his mother or attorney were at the station. Sergeant Barrom told him there was no one there and that he had "done growed up [sic] now." Sergeant Barrom left again, returning about forty minutes later with Ms. Abston. The Petitioner said that officers told his mother that someone named "Little Fred" implicated the Petitioner and his brother in the "incident that happened at Whitehaven." However, according to the Petitioner, "no one never said who exactly did anything because didn't [sic] anybody know."
According to the Petitioner, when officers told Ms. Abston that her sons had been involved in the shooting, "she panicked," "started crying," and told the Petitioner to talk to Sergeant Barrom. The Petitioner said that he told his mother that he "didn't want to talk to them" and "[t]old them to get the hell out of there." The Petitioner said that he asked for a lawyer, but Sergeant Berryman called him a "little punk" and said he "better start showing some respect. . . ." Sergeant Berryman then left the room.
The Petitioner said that Sergeant Barrom continued to ask him what happened, but the Petitioner told him that he did not want to talk to him. Sergeant Barrom "grabbed [the Petitioner's] mama's hand" and told her that he could only help keep the Petitioner in juvenile court if the Petitioner talked to Sergeant Barrom and told him "exactly what happened." According to the Petitioner, his mother "kept crying" and said, "[G]o on and tell them." The Petitioner said he started crying and "told them what happened."
The Petitioner said that after he gave his verbal statement, Sergeant Barrom gave his mother a document explaining the Petitioner's
The State called Paul Hagerman, the prosecutor in the Petitioner's case. Mr. Hagerman said that he debated whether to introduce the Petitioner's statement at trial because the statement supported the Petitioner's claim of self-defense. In particular, Mr. Hagerman said that the Petitioner asserted that he fired the gun because he felt threatened. Mr. Hagerman ultimately decided to use the statement because "identity was an issue. . . ." According to Mr. Hagerman, there was a witness who "identified [the Petitioner] as being in the car and having taken certain actions," but the witness did not see the shooting and could not identify the shooter. However, a second witness testified that the person who took the actions described by the first witness was the shooter, and the description provided by the second witness matched the Petitioner's.
On cross-examination, Mr. Hagerman testified that Sergeants Berryman and Barrom noted in the case file that the Petitioner had gold teeth and that Sergeant Berryman testified to that fact at trial.
On November 25, 2014, the post-conviction court entered a detailed order denying relief. The court noted that trial counsel's memory of his thought processes was understandably diminished due to the ten years that had passed since the Petitioner's trial. The court noted that trial counsel testified that the Petitioner's statement was helpful because it supported a claim of self-defense. The post-conviction court found that it was "a reasonable defense strategy in light of the other evidence that came out at trial" to use the statement to support the Defendant's claim of self-defense. The court noted that there "would have been legally sufficient evidence to support the Petitioner's conviction . . . even if the statement had not been admitted into evidence" based on the following trial testimony: the Petitioner was in the back seat of the car at the time of the shooting; shots were fired by someone sitting in the back seat; the Petitioner exited the back seat of the car after the shooting; the shooter had gold teeth; and when the Petitioner was interviewed by police, he had two gold caps on his teeth. Ultimately, the court concluded that the Petitioner failed to prove that the decision not to file the motion to suppress was based on inadequate preparation or deficient performance.
Furthermore, the post-conviction court found that the Petitioner did not "establish a reasonable probability that he would have prevailed on the motion to suppress" if it had been filed. The court noted that the Petitioner did not offer any testimony at the hearing to support his claim that he was arrested without probable cause and that he had objected to testimony from the State relevant to that subject. Additionally, with respect to a claim that his statement was coerced, the court pointed out that the Petitioner's testimony differed greatly from his mother's, and he failed to call the interrogating officers as witnesses. The court characterized the Petitioner's evidence at the hearing as being "riddled with inconsistencies" and "self-serving." Accordingly, the court concluded that the Petitioner failed to prove prejudice.
This timely appeal followed.
On appeal, the Petitioner asserts that the post-conviction court erred in denying him relief on his claim that trial counsel was ineffective for failing to file a motion to suppress the statement he made to police following his arrest. The State first responds with a challenge to this court's jurisdiction to hear the appeal. Alternatively, the State avers that the judgment of the post-conviction court should be affirmed. The Petitioner disagrees with the State's jurisdictional argument and requests that we consider the issue presented on the merits.
Initially, the State requests that we dismiss this appeal, alleging that the post-conviction court's order denying relief is not a "final judgment" within the meaning of Tennessee Rule of Appellate Procedure 3(b). The State bases this argument on the fact that the 2005 post-conviction court's order allowing a delayed appeal and holding all other issues in abeyance has never been revisited. Thus, the State reasons, the 2014 post-conviction court's order disposing of the sole newly-raised issue in the 2014 petition did nothing to resolve those pre-existing claims. The State further contends that the 2012 and 2014 petitions cannot be characterized as amended petitions because, following the conclusion of a delayed direct appeal, a petitioner may only amend the petition to add a claim resulting from appellate counsel's handling of the delayed appeal. Accordingly, the State argues that we should dismiss this appeal and remand to the post-conviction court for resolution of the remaining 2005 claims.
In response, the Petitioner argues that his 2012 pro se petition operated as an amendment to the 2005 petition following his delayed appeal. The Petitioner says that he has abandoned the issues raised in his 2005 petition and that he further narrowed the issue for review in the amended 2014 petition filed with the assistance of counsel. Thus, the Petitioner disagrees that there are outstanding issues that have not been ruled on by the post-conviction court, and he asks that we proceed on the merits. With respect to the State's argument that his amendments were improper, the Petitioner avers that the State has waived this argument because it failed to raise it in the post-conviction court.
Tennessee Code Annotated section 16-5-108(a)(2) dictates that "[t]he jurisdiction of the court of criminal appeals shall be appellate only, and shall extend to review of the final judgments of trial courts in . . . Post-Conviction Procedure Act proceedings. . . ." Likewise, Tennessee Rule of Appellate Procedure 3(b) states that an appeal as of right by a petitioner lies from a final judgment in a post-conviction proceeding. A judgment is final "when it decides and disposes of the whole merits of the case leaving nothing for the further judgment of the court."
The Petitioner's 2005 petition included nine claims for relief, only two of which were addressed by the 2005 post-conviction court's order granting a delayed appeal. The post-conviction court refrained from ruling on the remaining seven issues, stating that "[i]t [was] not necessary or efficient to address other issues raised in the Petition for Post-Conviction Relief at [that] time. Such other issues may be dismissed without prejudice to Petitioner timely filing another Petition for Post-Conviction Relief after resolution of appellate issues, if same is necessary." In the Petitioner's 2012 pro se petition, filed after the conclusion of his delayed appeal, he did not provide specific factual allegations supporting his grounds for relief; rather, he merely placed check marks next to several grounds listed on the standard form. When the 2014 amended petition was filed with the assistance of counsel, the sole ground for relief included was trial counsel's failure to file a motion to suppress the Petitioner's post-arrest statement to police.
Although the post-conviction court's November 2014 order denying relief does not address the issues raised in the 2005 petition, those issues were not pursued in either the 2012 or 2014 petition or at the evidentiary hearing. While the 2012 petition does not specify that it is an amended petition, the Petitioner did acknowledge that a previous petition had been filed in the case, and the post-conviction court noted the same in its order denying relief.
Both the Petitioner and the State concur that when the 2005 post-conviction court granted the delayed appeal, the remainder of the issues in the petition were held in abeyance. Likewise, we agree that following the direct appeal, the issues raised in the 2005 petition were still viable because they were held in abeyance and never dismissed by the post-conviction court. Ultimately, we also agree with the Petitioner's submission that "a common sense reading of the record supports a finding that [the 2012 pro se petition] was simply an amendment to [the] Petitioner's original petition for post-conviction relief filed on September 7, 2005." Therefore, through what we characterize as two amended petitions—the 2012 pro se petition and 2014 petition—the issues raised in the 2005 petition were abandoned, and the Petitioner, as was his right, chose to proceed only on the issue regarding trial counsel's failure to file a motion to suppress. Therefore, when the post-conviction court entered its November 2014 order denying relief, it addressed the only issue remaining and was a final judgment within the meaning of Tennessee Code Annotated section 16-5-108(a)(2).
Although the State asserts that these subsequent petitions cannot be characterized as amendments based on Tennessee Supreme Court Rule 28, § 9(D)(3)(a),
Finally, we turn to the merits of the Petitioner's argument on appeal: that trial counsel was ineffective for failing to file a motion to suppress his statement to police. The Petitioner contends that the statement "was made as the result of an illegal arrest, coercion, denial of the [Petitioner's] right to counsel, and failure to properly Mirandize [him]." The State responds that the post-conviction court properly denied relief.
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 defendants are constitutionally guaranteed the right to effective assistance of counsel.
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."
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);
We agree with the post-conviction court's conclusion that trial counsel's failure to file a motion to suppress was not ineffective assistance. First, it is well-established that, in post-conviction proceedings, "we should defer to trial strategy or tactical choices if they are informed ones based upon adequate preparation."
In his reply brief, the Petitioner claims that his testimony alone established that a motion to suppress would have been granted. He says that the State then had the burden of rebutting that evidence, for instance, by producing the testimony of the detectives at the evidentiary hearing. The Petitioner acknowledges that his position is unsupported by the previous holdings of panels of this court but he urges that we part course from those panels and grant him relief.
Based on the foregoing and the record as a whole, the judgment of the post-conviction court is affirmed.
