### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs J une 7, 2005 MAURICE GAR

RETT v. STATE OF

TENNESSEE Appeal from the Circuit Court for Lauderdale County No. 7346 Joseph H. Walker, III, Judge

No. W2004-02367-CCA-R3-PC - Filed September 22, 2005

The Appellant, Maurice Garrett, appeals the L auderda le C ounty Circuit Court’s denial of his petition for post-conviction relief. On appeal, Garrett ar gues that he was denied his Sixth Amendment right to the effec tive assistan ce of co unsel. Af ter a re view of the recor

d, we af firm the d enial ofpostconviction relief.

Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed
D AVID G. H AYES , J., delivered the opinionof the court, in which J OSEPH M. T IPTON and T HOMAS T. W OODA LL , JJ., joined.
Rebecc a S. Mills, Ri

pley , Tennes see, for

the Appe llant, Mau

rice Ga rrett. Paul G. Su mm er s, At to rn ey G en er al an d R ep or te r; Se th P. Ke st ne r, As si st an t A tt or ne y Genera l; Elizabeth T. Rice, District Attorney Ge neral; and Tracey

A. Bre wer W a lker, Assistant District Attorney Gene

ral, for the Appellee, State of Tennessee.
OPINION
Proce dural Background
InMay of 2003, the Appella

nt pled g uilty to two counts of attempted second degree murde r, one count of

attempted especially

aggravated robbe

ry, one count of

especially a

ggravated bu rg la ry, one count of reckless endange rment, and one count of felony possession of a weapon. As a resu lt of these convictions , the Appe llant is currently se rving an effective twenty

-year sente nce as a Range II, multiple offender i n the Dep artm ent of Correction. The offenses stem from the shootings of1 The transcr ipt of th e Appellant ’s gu ilt y pleahearin g iden tifies the victim s as Jer ome Isom and B obb y Carr oll; however, the App ellant’s br ief and a pan el of this court in State v. Brandon Wallace , No. W2003-01967 -CCA- R3-CD (T enn. C rim. A pp. a t Jacks on, Ja n. 28 , 200 5) ide ntify the victim s as Jer ome Eiso m and Bo bby H arrell. -2- Jerome I som and B obby

Carroll, 1 which occurred when the Appellant and three co-defendants set outto steal drugs and money located within Isom’s mobile home. One of the victims identified the Appellant in aphoto line-up as one of the robbers. The Appellant’s co-de fendants confirmed that the Appellant was the driver of the vehicle and a participant in the planne d crimes. The Appellant was described as the leader in the commission of the crimes.
The Appellant’s initial trial counsel was appointed following the Appellant’s indictment but was permitted to withdraw based upon the Appellant’s request that counsel be relieved. Substituted counsel was then appointed and continued to repre sent the A

ppellant at the time

of his guilty

pleas.
InDecember of 2003, the Appellant filed a pro se petition for post-conviction relief alleging that he was denied the effective assistance of counsel by the two at torney s who had s eparat

ely represented

him. Foll owing the appointment of counsel and the filing of an amended pe tition, an evidentiary

hearing was held on September 17, 2004. The post-c onviction court denied relief, and this timely appeal followed. Analysis
Inorder to

succeed on a post-conviction claim , the A ppell ant be ars th e burd en of s howin g, by clear and convincing evidence , the allegations set forth in the petition. Tenn. Code Ann. § 40-30- 110(f) (2003). To support a Sixth Amendment claim of ineffective a ssistance of counsel, the Appellant must estab lish

that co un se l’ s p er fo rm an ce fe ll be lo w t he ra ng e o f c om pe te nc e o f a tt or ne ys demanded

in criminal cases. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Under Strickland v. Washington , the Appe llant must e stablish (1) deficient representation and (2) pr ejudice resulting fromthe deficiency

. 466 U.S. 66 8, 687, 104 S. Ct. 2052, 2064 (1984). It is unnecessary for a court to address deficiency

and prejudice in any

particular order, or even to addre ss both if the petitioner makes an insufficient showing on either. Id . at 697, 104 S. Ct. at2069. With a guilty plea, to satisfy the “prejud

ice” pr ong, the Appellan t “must show

that ther e is a reasonable probability

that, but for counsel’s errors, he would not have pleaded g uilty and would have insisted

on going to trial.” Hill v. Lockh art , 474 U.S. 52, 56, 106 S. Ct. 366, 369 (1985).
The issues of

deficie nt performance by counsel and possible pre judice to the defense are mixed questions of law and fact. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). “A trial court’s findings of fact underlying a claim of ineffective assistance of counse l are reviewed on appeal under a de novo stand ard, accompanied with a presumption that those findings are correct unless the preponderanceof evidence is otherwise.” Fields v. State , 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 13 (d); Henley v. State , 960 S.W.2d 572, 578 (Tenn. 1997)). However, conclusions of la w a re re vi ew ed un de r a pu re ly de novo standar d with no presumption of correctness. Fields , 40 S.W.3d at 458.-3-

The Appellant argues that his t rial attorneys were d

eficien t for fai ling to: ( 1) “meet with [him] as much as necessary ”; and (2) conduct a proper inve stigation, interview cer tain witne sses, develop a strat egy, and disc uss defe nses. The

record in this cas e, however, suppo rts the po stconvictioncourt’s finding that the Appellant di d not receiv e the ine ffectiv e assista nce of c ounsel.
At the post-conviction hearing, the Appellant testified that his first appointed attorney met with him three or four

times. He further testified that he asked trial counsel t o intervie w the vict ims, visit th e crime sc ene, co llect the criminal histories of his co- defenda

nts, and pr

ovide him w

ith ballistics reports, hospital records of the victims, and the photo line-up used for his identification. The Appellant also testified that trial cou nsel did not intervie

w witness es whom he

claimed would support his alibi and confirmed, “that’s what made me withdraw him from my case.”

He related

that this attorney never

discussed trial strategy

and urged him to pursue a plea ag reement. The Appellant testified that after the withdrawal of his first attorney , he met with his second trial counsel three times and that this attor ney also fail ed to honor the

request s presen

ted to his f

irst trial counsel. The Appellant stated second counsel never discusse d trial str

ategy and also u

rged h im to accept a pl ea ag

reeme nt if he ever wanted to see his children ag ain. As a result, the Appellant testified that he was afr

aid not topl ea d g ui lt y bu t d id no t u nd er st an d w hy h e s ho ul d r ec ei ve a t we nt yyear se ntence when two of the co-defenda nts received sentences of ten y ears. The Appellan

t’s first t rial cou nsel testi fied tha

t he condu

cted an i nvestig ation of the case before being d

ischarg ed and sp oke with se veral in dividuals

whom the A

ppellant claimed would support his alibi, including the App ellant’sb rother and the Appellant’s hairsty list. Counsel concluded, however , t hat their alibis could not be substantiated. The Appellant’s second trial counsel te stif

ied that a lthough he conducted an inv estiga tion of the

case, he did not spe cifical ly interviewthe al ibi witnesses. However, he learned from pre vious counsel that the Appellant’s hairsty list could not pinpoint the spe cific day a nd time that the Appellant visited his salon. Ad di ti on al ly, counsel stated tha t he requ ested tha t the Appe llant’s si ster a nd brothe r contact his office, but they failed to do so. He discus sed the p le a a gr ee me nt wi th hi s c li en t f or se ve ra l d ays before the Appellant reached a decision. Trial counse l informed the Appellant that he could receive a sentence of up to sixty-six y ears if he went to trial and that one of his co-defendants had rec eived a forty-six y

ear sentence. The Appellan

t’s hairstyli s t testif

ied at the post-conviction hearing that he rec alled the Appellant visiting his salon during the week in which the crimes were committed, but he could not recall the exact day of the we ek as hi s records had been discarded. He did remember that the Appellant request ed a “Wav e Nuevo, ” which would have tak en sever al hours t o complet e and that the Appellant’s brother or sister would have picked him up from the salon. The Appellant’s sister testified that she s pecific ally

recalled picking up her brother f rom the salon

in Dyersburg

around 6:002 The prosecut or’s c omments, w hich cl early are not evidence , suggest that t he crimes occurred earlier i n the afterno on an d pr ior to the App ellant’s visit to h is hairstylist. -4- p.m. on the day the c

rimes were committed

and that t hey were together f

or appro ximately

two hours

. No proof was introduced, however, as to the time the cr imes were actually

committed. 2 In deny ing relief, the post-conviction court found: [The Appellant’s first trial counsel] testified at the post-conviction hearing that h e met with the Petitioner

personally on seve

ral occasions. He interviewed witnesses that the petiti oner told

him would

be alibi witnesses and they did not support an alibi. [Trial counsel] was given

full discovery

and sat through the evidentiary portion of the trial of a co-defendant, Mr. Wallace, who wa s convicted by a jur y, and rec ei ved a sentenc e of 46 y

ears. [The Appellan

t’s second trial c ounsel] assumed the defense of Petitioner

after [f irst trial counsel] was relieved. [The Appellant’s second trial counsel] discussed the legal issues with Petitioner and made investigations as requested. He reviewed the transc ript of the evidence of the preliminary

hearing and the tra

nscript o f the trial evidence. He met several times with petitioner. He went over the transcript of the testimony with Petitioner. They discussed that the vi ctim knew the petitioner and identified him as one of the perpetr ators. He worked out a plea arrangement which was ac ceptable to petitioner.

. . . . The Petitioner

is not satis fied with

his sentenc e. While one co-de fendant , who also fired the shotsand was tried by the jury receiv ed 46 y

ears, two other c o-defe

ndants received sentences of 10 y

ears. (The co-defe

ndan ts who received lesser sentences had less involvement in the events than Petitioner and no prior record. They testified they were led astray by

Petitioner.)

. . . . While the Petitioner maintains now he has an alibi, [the Appellant’s first trial counsel] intervie

wed those witnesses and they did not support the alibi def ense. Mr. Thomas , a hairdre sser, testified that an attorney contacted him and he could not support the alibi defense. Hi s rec ords had been discarded. He knows that the Petitioner came to g et his hair done that week and was in the shop for a couple of hours, but does not know which d ay. Ms. Grandberry , the sister of Petitioner, testified that she pi cked the Petitioner up from the hair salon. She believes she picked up her brother about

6 p.m. and went

by her mothe

rs house a nd went ba

ck to-5-

the sh op on th e d ay h e i s a ll eg ed to ha ve co mm it te d t he cr im es in Lau de rd al e C ou nt y. At th e time charges were f iled against her brother, she did not try to c ontact he r brother’s attorney s to tell them this. She did not come forward with the alibi at the time. The Court finds that the sister is not credible. There were three witnesses who personally knew

the defendant and identified the petitioner as being involved.

. . . . The Court finds thatpetitioner has failed to establish the factual allegations contained inhis petition by clear a

nd convincing evidence. Tenn. Code Ann. § 40-30-210. The petitioner has not shown that (a) the services rendered by trial counsel were deficient and (b) the deficient performance was pre judicial. The petitioner has not shown that the servic es rend ered or the advice given wa s below the range of competence demanded

of attorney s in criminal case s. The petitioner has not show n that the re is a reasonable pro bability

that, but for counsel’s deficient performance , the result of the proceeding would have been dif ferent.
The record

does not pr

eponder ate ag ainst thes e finding s. A bare allegation that trial counsel has failed to perform in some manner does not equate to ineffec tive assistance of counsel. T h e Appellant offers no ex plana tion as to h ow add itio nal me etings , furt her in vesti ga tio n, additional witnessinterviews, and fur ther st rategy development would have changed his decision to plead gu il ty. Clearly, trial counse l cann ot be fau lted for f ailing to intervie w additional witnes ses or to further investigate where there

is absolute ly

nothing t o sugg est that a

ny f urther in vestiga tion would have bene fitted the Appellant’s defense. The burden of proving a lost benefit rests with the Appellan t. Accordingly , the Appellant has failed to demonstrate either deficient pe rformance o r prejudice, the two components of any ineffective assistance claim.
CONCLUSION
Based upon the f

orego ing, we

conclude that the p ost- co nviction court properly de nied the Appellant’s petition for post-conviction relief. Accordingly , the judgment of

the Laud erdale County Circuit Court is affirmed.

___________________________________ DAVID G. HAYES, JUDGE