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

Briefs M arch 19, 2002
LAYTHANIEL HANEY, SR. v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Cocke C ounty No. 24,713 III Rex Henry Ogle, Judge

No. E1999-00616-CCA-R3-PC Filed April 25, 2002

The Petitioner

was convicted by a

Cocke Cou

nty jury of

seven co unts of selling cocaine and one count of simple possession of marijuana. The trial court impo sed an ef fective sentenc e of thirt

y-six years in the Tennessee Department of Correction. The convictions and sentence were affirme d on direct appeal. The Petitioner subsequently filed a petition for post-conviction relief, arguing that he received ineffe ctive as sistance

of counse

l at trial. Following a heari ng, the tr ial cour t denied p ostconviction relief, and this appeal ensued

. Concluding that the Petitioner received effective assistance of counse l at trial, we affi

rm the judg ment of the

trial cou rt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

R OBERT W. W EDEMEYER , J., delive red the o pinion of t

he court , in which G ARY R. W ADE , P.J., and D AVID H. W ELLES , J., joined.

Gerald L. Gulley, Jr., Knoxville, Tennessee(on appeal); and Donald K. Schold, Naples, Florida (at trial), for the Appellant, Laythaniel Haney, Sr.

Paul G. S ummers, Attorney Gen eral an d Reporte r; Elizab eth B. Mar

ney, Assi stant Atto

rney Ge neral; Al C. Schmutzer, Jr., District At tor ney General; and Charles E. Atchley, Jr., Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION

The Petitioner, Laythaniel Haney, Sr., was c onvicted of five c ounts of selling more than 0.5 grams of coca

ine, a Cla ss B felony; t

wo counts of selling

less than 0.5 grams

of coca ine, a Cla ss C felony; and simple possession of marijuana, a Class A misdemeanor. The trial court sentenced the Petitioner as a Range II multiple offender and imposed a combination of concurre nt and consecutive sentenc es, resulting in an effective sentence of thirty-six years’ incarceration. This Court affirmed the convictions and t he sent ences on direct appeal, and the Tenne ssee Supreme Court denied permission to appeal. See State v. Lathaniel Haney , N o. 03-C-01-9612-CC-00449, 1997 Tenn. Crim. App. LEXIS 862 (Tenn. Crim. App., Knoxville, Sept. 10, 1997).-2-

The Petitioner

filed a timely petit

ion for po st-convi ction relie f, which the trial court heard and dismiss ed. The Petitioner now appeals the post-conviction court’s denial of relief. The Petitioner contends that he received ineffective assistance of counsel at trial. Specific ally, he argues that his trial a ttorney f ailed to communicate several plea offers “ for twenty (20) years at 35%” to hi m and that his tr

ial attor ney fail ed to call witnesses who “could testify in support of the Petitioner’s defense of justification.” Having reviewed the record, w e con clu de that the Petitioner received effectiveassistance of counsel at trial and thus affirm the trial court’s denial of post-conviction relief. At the hearing on the petition for post-conviction relief, the trial court heard the testimony of the Petitio ner, his s ister, and his trial attorne y. The Pet

iti oner stat ed that he

had diff iculty contacting his attorney and that his attorney did not discuss the “details” of his case. The Petitioner testified that his tr

ial attor ney neve r talked to any of his witnesses. The Petitioner further testified that he did not r

emember being pre sented w ith sever al plea a greeme nt offer s, including one offer of twenty ye ars as a

Range II offende r for all of the of fenses.

The Petitioner’s sister testified that she tried to a ssist the Pe titioner i n communic ating with his attorney by visiting the attorney’s office “at least four or five times.” She reported, however, that she was unable to talk with her brother’s attorney.

Counsel testified that during her representation of the Petitioner, she met with him numerous times. She recalled that she discussed with the Petitioner audiotapes, lab reports, and “every other item that [they] received in discovery.” She also discussed p ossib le defense witnesses with the Petitioner. After interviewing several potential defense witnesses, she deter mined tha t their testimony “would either be not relevant or actually detrimental to [the Petitioner’s] c ase.”

Counsel explaine d that the Petitioner ’s defe

nse theor y was tha t he was w orking asa paid informant for the Federal Bureau of Investigation (F.B.I.) and he had been given “c arte bla nche to particip ate in drug trafficking in any manner that he chose in order to develop intelligence that coul d be used to make ca ses agai nst other people.” Counsel was able to substantiate that the Petitioner had workedas a paid informant for the F.B.I. for an unspecified period of time, and she entered into a stipulation to that effect which was presented to the jury

at Petitioner’s tri al. Counse l testifie d that, in her opini on, the Pe

titioner’ s defens e of justif ication w as not goin g to be successful. However, she requested and received a jury instruction on the justification defense at trial. She testified that the Petitioner turned down a plea offer of twenty yea rs on two occasions on the morning of trial.

The Petitione r now contends that he should be granted post-conviction relief because he received ineffe ctive as sis tance of cou nsel at trial. In order to obtain post-conviction re lief, a petitioner must show that his or her conviction or sentence is void or voidable because of t he abridgment

of a constitutional right. Tenn. Code Ann. § 40-30-203. The petitioner bears the burden of proving factual allegations in the petition for pos t-conviction relief by clear and convincing evidence. Id.

§ 40-30-2 10(f). A

post-con vic tion court’s factual findings are subjec t to a de novo review by this C ourt; howev er, we m ust ac cord t hese fa ctual findi ngs a presum ption of c orrect

ness, which is overc ome only

when a preponderance of the evidenc e is contrary to the post-conviction-3-

court’s factual findings. Fields v. State , 40 S.W.3d 450, 456 ( Tenn. 2001). A post-conviction court’s conclusions of law, such as whether counsel’s perf ormance was deficient or whether t hat deficiency

was pr ej ud ic ia l, ar e s ub

je ct to a p ur el y de novo review by this Court, with no presumption of correctness. Id. at 457.

The right of a criminally accused to representation is gua r anteed b y bo th the Sixth Amendment

to the Unit

ed States Constitution

and Artic le I, Section 9 of the Tennessee Constitution. Statev. Burns , 6 S.W.3d 453, 461 (Ten n. 1999); Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). This right to representation includes the right to “re asonably ef fective” assistance. Burns , 6 S.W.3d at 461.

In reviewing a claim of ineffective assistance of counsel, this Court must determine whether the advice g

iven or se rvices r endere d by

the attor ney are with in the range of competence de manded of attorne ys i n criminal

cases. Baxter , 523 S.W.2d at 936. To prevail on a claim of ineffective assistance of counsel, a petitioner must show that “counsel’s representation fell below an objective standardof reasonableness,” Strickland v. Washington , 4 66 U.S . 668, 688 ( 1984), a nd that this performance

prejudiced the defense, resulting in a f ailure to produce a reliable r es ult, id. at 687 ; Cooper v. S tate , 849 S.W.2d 744, 747 (Tenn. 1993). To satisfy the requirement of prejudice, a petitioner must show a reasonable probability that, but for counsel’s unreasonable err or, the fact finder would have had reasonable doubt reg arding the petitioner’s guilt. Strickland , 466 U.S. at 695. This reasona

ble proba bility must be “s ufficie

nt to under

mine conf idence in the outcome.” Id. at 694;
see also Harris v . State , 875 S.W.2d 662, 665 (Tenn. 1994). Becau se a petitioner must establish both prongs of the test to prevail on a claim of ineffective assistance of counsel, failure to prove either de ficient perfor

mance or resulting prejudice provides a sufficient basis to deny relief on the claim. Indeed, a court need not a

ddress the components in any particular orde

r or eve n addres s both if the [pet itioner] ma

kes an ins ufficie

nt showing

of one co mponent. Henley v. State , 960 S.W.2d 572, 580 (Tenn. 1997).

When evaluating an ineff

e ctive assis tance o f coun sel cl aim, t he revi ewing c ourt s houl d jud ge the attorney’s pe

rformancewithin the

context of

the case as a whole, taking into account all relevant circumstances. Strickland , 466 U.S. at 690 ; State v. Mitchell , 753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court must evaluate the que stionable c onduct from the attorney’ s perspective at the time. Strickland , 466 U.S. a t 690; Cooper , 849 S.W.2d at 746; Hellard v. State , 629 S. W. 2d 4, 9 ( Te nn . 1 98 2) . In do in g s o, th e r ev ie wi ng co ur t m us t b e h ig hl y d efere ntial and “should indulge a strong presumpt ion that counsel’s conduct falls within the wide range of
reasona ble professional assistance.” Burns , 6 S.W.3d at 462. Counsel should not be deemedto have been ineffective merely

because a different proce dure or strategy

might have produced a differe nt result. Williams v. Sta

te , 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980).

At the conc lusion of th

e hearing, the

trial cou rt m ade t he following findings of fact and conclusions of law:-4-

Firs t of all, th e Court finds in regard to the actions of [counsel] that she fully and complete ly complied with the terms of the mandates of the Sixth Amendment to the United States Constitution. She fully advised [the Petitio ner]. She [p

resente d] him [with] plea offers time and time again that he refused to take.

In fact, if I reme

mber correctly , as I stated earlier , this Court advised him of his righ ts in anticipation of a plea on one of the day s that this case was set for trial . In f act I think we had called the jury

off in anticipation of a plea from [thePeti tioner] and after advising him of his r

ights he then chos e not to ta

ke the ple a, which

of cours e was his privilege so to do.

The allegations - - Well, first of all, any allegations of ineffective assistance of counsel not raised by

the proof that the Court has heard here ar e hereb y di smissed in toto.
Se co nd ly, or thirdly , as to the allega tions that [c ounsel] fa

iled to co mmunicate

with him, failed to

investig ate this ma

tter and fail[ed] to a

dvise him, the Court finds to be totally without merit and finds that [the Petitioner] furthermore is not entitled, he is notworthy

of belief in this Cou

rt. He wa s caught here i n these circumstances several times in total fabrication.

. . . . But I find in th is case that there’s absolutely . . . no foundation in fact, fiction or otherwise to find that [the Petitioner’s counsel] did not do her dut y to h im . In fact, she went above and beyond the call of duty . . . .

In our view, the fi ndings of the trial court are fully supported by the evide

nce presented at the post-conviction hearing and in the record on appea l. The Petitioner’s trial attorney testified that she did communicate several plea offers for twenty years a t thirty-five perc ent to the Petitioner and that the Petitioner simply declined to acc ept these offers. The trial court clear ly accr edited the testimony of counsel and not that of the Petitioner.

As for Petitioner’s argument that he received ineffective assistanc e of counsel due to his trial attorney’sfailure to call witnesses who could allegedly testify in support of a

justification defense,
we again c onclude t

hat the tr ial cour t’s deter mination th at this ar

gument i s w i thout meri

t is fully supported by the rec ord. At the post-conviction hearing, the Petitioner did not present the testimony of the witne sses in que stion, and trial cou nsel testi fied tha

t the witne ss es w ould have harmed the Petitioner’s case rat

her than helped it. We cer tainly cannot c onclude t

hat the f ailure to call thes e witnesses resultedin any

prejudic e to the Petitio ner. The refore , the Petiti oner hasfailed to establish the prejudice prong of the Strickland test, that but fo

r “couns el’s unpr

ofession al erro

rs, the r esult of the proceeding would have been dif ferent.” Strickland , 466 U.S. at 694.-5-

Accord ingly , we AFF

IRM the judgme

nt of the tr

ial cour t.

___________________________________ ROBERT W. WEDEMEYER, JUDGE