IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs October 4, 2011

LARRY HOLMES v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 03-02148 Paula L. Skahan, Judge

No. W2010-02672-CCA-R3-PC - Filed April 20, 2012

The Petitioner, Larry Holmes, appeals the Shelby County Criminal Court’s denial of postconviction relief from his convictions for four counts of especially aggravated kidnapping,

two counts of aggravated robbery, and one count of aggravated burglary, and resulting

effective sentence of seventy years. The trial court merged the aggravated robbery

convictions with the especially aggravated kidnapping convictions. The Petitioner contends

that he was denied due process when the trial court failed to dismiss the kidnapping

convictions and that he received the ineffective assistance of counsel on appeal. We affirm

the judgment of the trial court.

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

JOSEPH M. TIPTON, P.J., delivered the opinion of the court, in which JAMESCURWOOD WITT,

JR., and ALAN E. GLENN, JJ., joined.

David Christensen, Brentwood, Tennessee, for appellant, Larry Holmes.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney

General; Amy P. Weirich, District Attorney General; and Doug Carriker, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

The Petitioner’s convictions resulted from an October 16, 2002 home invasion

robbery. This court summarized the trial testimony in its opinion disposing of the

Petitioner’s direct appeal:
This case relates to the invasion of the home of Trina

Boyce at approximately 4:00 a.m. on October 16, 2002, by an

undetermined number of intruders. Ms. Boyce testified that she

lived with her brother, husband, and five children. She said that

the house was a split-level style home with the main entrance on

the first level and from the entryway, a set of stairs led to a

lower level from which one can access the back yard, the

swimming pool, and the lake. She said the first level had a deck

overlooking the swimming pool. She said that on the night of

October 15, 2002, her husband was out of town on business and

that she was at home with her brother and five sons who at that

time were ages three, five, and the remainder were teenagers.

She said that her husband called from Dallas, Texas, at

approximately 1:30 a.m. the morning of October 16 and that she

talked to him for about one hour. She said that at about 3:30

a.m., their dog began barking and would not stop. She said that

a few minutes later, her son Demarcus came upstairs wanting to

borrow one of her miniskirts for a cheerleading skit at school.

She said she sent him back downstairs and shortly thereafter,

began hearing a pounding sound like an unbalanced washing

machine. She said that she got up and went to the foyer because

the dog was still barking and that she then heard voices at the

front door saying, “Hurry up, hurry up.” She said she yelled to

Demarcus that someone was trying to break into the house,

closed the foyer door, and headed for her bedroom where her

two youngest children were sleeping.

Ms. Boyce testified that by the time she reached her

bedroom door, she could see the first man entering the house

wearing a ski mask and dark clothing. She said that they were

claiming to be the police but that she knew the police did not

wear masks. She said that the second man was wearing a sweat

suit and a hooded shirt and that she could not see his face. She

said that she locked the bedroom door but that the men pounded

on it and eventually kicked it in. She said that they entered the

bedroom and said, “B* * * *, where’s your husband? We going

to kill your m* * * * * f* * * * * * husband.” She said she told

the men her husband was not home, at which point they made

her lie down and handcuffed her wrists behind her. She said the

men asked where she kept the drugs, jewelry, and safe. She said

-2-
she told them she did not have any money, a safe, or any drugs

in the house. She said she could hear the men ransacking the

house and asking each other, “Where is the s* * *?” She said

that she heard one of them direct the others to check downstairs

and upstairs and that they asked her how many people were in

the house. She said she told them but the number of persons

found did not coincide with her information because Demarcus

had escaped. She said the men began looking for Demarcus.

Ms. Boyce testified that when the men left her alone to

look for Demarcus, she crept downstairs and found her other

two teenage sons and her brother handcuffed and lying on the

ground. She said she hid downstairs and then heard some of the

men yelling that she had escaped. She said that while they

began to look for her outside, she went upstairs to get her two

younger children. She said that she was still in handcuffs but

that she was able to put one son on her back and the other

followed her. She said that when she returned downstairs with

both children, she heard the men running and yelling, “It’s the

police. It’s the police.” She said the men made lots of noise and

then jumped off the back deck. She said police officers arrived

shortly thereafter. She said they removed the handcuffs from

her and her family, searched the house, and apprehended two of

the intruders. She said that she heard four different voices

during the incident but that she saw only two men, the first

person who entered the house and the man directly behind him.

She said that the police recovered her wallet, checkbook, and

identification and that they retrieved a purple Crown Royal bag

containing quarters which she had kept in a nightstand drawer

in her bedroom.

Ms. Boyce testified that the first man to enter the house

carried a dark-colored semi-automatic weapon. She said that

one man threatened to kill her husband and that another told her

he would kill her if she did not tell them the location of the

drugs and money. She acknowledged thatshe was placed in fear

and held against her will. She said that apart from believing that

she recognized the voice of one intruder, she was unable to

identify any of the men who broke into her house.

-3-
On cross-examination, Ms. Boyce acknowledged thatshe

could not identify the [Petitioner] as one of the perpetrators and

that she told the police there may have been as many as five or

six intruders that morning. She said that the entire episode

lasted twenty to twenty-five minutes and that she was upstairs

for fifteen to twenty minutes. She said her brother and two

thirteen-year-old children were handcuffed and lying on their

stomachs on the floor downstairs. She said that an eight-foot

fence separates her property from that of the neighbor on the

north side, that the lake is about one hundred feet from the back

door entrance to the house, and that the backyard may be entered

through two gates, one on either side of the house. She

acknowledged that her mouth was not gagged, her feet were not

tied, and nothing was placed over her head during the break-in.

Demarcus Teheir Boyce testified that on the morning the

intrudersinvaded his home, his dog woke him earlier than usual.

He said his bedroom was downstairs and located the farthest

distance from the stairway. He said that he thought the dog

needed to go outside and opened the back door but that she

would not go outside and went upstairs instead. He said he

followed her. He said the time was 4:25 or 4:30 a.m. He said

that the dog started barking near the front door when he started

to eat breakfast and that he went to the dining room window to

check outside but before he reached the window, he heard

someone at the front door. He said the noise sounded like

“metal and stuff being turned and banging.” He said his mother

thought the noise was coming from him and asked what he was

doing. He said that as she walked to the front door, he saw a

van in the driveway and the shadow of someone standing at the

door who told the dog to shut up. He said that his mother told

him to go and ran toward her bedroom and that he then ran to

the kitchen and out the back door. He said that he stood at the

window for a moment and watched someone kick in the front

door and run toward his mother’s bedroom with a gun. He said

he saw a second man enter the house but did not see either

man’s face. He said he ran toward the lake, jumped a couple of

fences, and ran across the street to the home of a neighbor, who

called the police.

-4-
On cross-examination, Demarcus acknowledged that he

did not know the [Petitioner] and had never seen him before.

He acknowledged that he did not wear eyeglasses or contact

lenses.

Andre Weathers, Trina Boyce’s brother, testified that he

occasionally lived with the Boyce family and was staying at

their house when the incident occurred. He said he slept in the

guest bedroom located downstairs. He said that on October 16,

2002, at approximately 4:30 a.m., he heard voices upstairs and

a rumble, like someone kicking in the door. He said he could

discern running and movement but did not recognize the voices.

He said he went to the bottom of the stairs and heard a few of

the men say they were the police and looking for something. He

said that he heard another man say someone is downstairs and

that he attempted to return to his room but one of the men came

downstairs, stopped him, and instructed him to lie flat on the

ground with his hands behind his back. He said that because it

was dark, he could not see what the man was wearing or any

details concerning his appearance. He said that the man had a

[nickel]-plated handgun but that he could not tell the caliber of

the weapon. He said the man handcuffed his wrists, picked him

up by the handcuffs, and asked him who else was downstairs.

He said he replied that his two nephews, A.J. and Arron, were

sleeping in a bedroom down the hall and called their names. He

said that the boys did not respond immediately and that he called

them again. He said a second man arrived just as the boys

emerged from their bedroom. He said they were handcuffed and

placed face down on the ground together.

On cross-examination, Mr. Weathers estimated that five

or six men were involved in the incident. He acknowledged that

in his statement to police, he said one of the men had a .38

caliber nickel-plated revolver and the other had what resembled

a 9 millimeter or a .45 caliber black semi-automatic weapon.

He acknowledged that his face and mouth were not covered and

that his feet were not bound. He said that even when the men

left the area downstairs, he was frightened and unable to get up

or move around until the police arrived.

-5-
Arron Boyce testified that on October 16, 2002, he was

awakened by his brother, A.J., who told him their uncle was

calling them. He said he and his brother shared a bedroom on

the downstairs level, where the bedrooms of his uncle Andre and

Demarcus were also located. He said he went into the hallway

and saw his uncle standing with his hands behind his back and

a gun pointed at his head. He said that his uncle told him to do

whatever the gunman said and that the man instructed the boys

to get on their knees and put their heads down. He said that the

man was short and wore dark clothes and a mask and that a

second man who was taller and light-skinned joined them. He

said the men put handcuffs on him and his brother, claimed they

were the police, and asked them where the money was. He said

that after the men placed him and his brother face down on the

ground alongside his uncle, he noticed the handcuffs were made

of plastic. He said that when the two men went upstairs, he

removed his handcuffs and also helped A.J. remove his. He said

he had contact with only two of the intruders and did not

recognize either one, except that one of them had a familiar

voice.

On cross-examination, Arron acknowledged that he did

not know the [Petitioner] and had never seen him at their house.

He acknowledged that his mother was moving about the house

even though handcuffed and that he could have moved about the

house if he had wanted. He conceded that he was only “kept

down” while the men were present but said that they had

instructed the victims to stay where they were.

Anthony Boyce, nicknamed “A.J.”, testified that on

October 16, 2002, he was awakened at approximately 4:20 a.m.

by his uncle repeatedly calling his and his brother’s names. He

said that he woke Arron and that they went into the hallway. He

said that as soon as they left their room, two men told them to

get on the floor. He said they complied and, two minutes later,

were instructed to go back down the hallway where handcuffs

were placed on their wrists. He said they were then told to get

down again. He said he recognized the voice of one of the men

as a friend of his father, and he identified one of the

codefendants in court. He said that the man asked them the

-6-
location of the money and that both men had guns. He said one

man had a gun pointed at his uncle’s head. He said that the men

left to look for Demarcus and that he heard them run out the

door when someone said “police.” He said the police arrived and

removed the handcuffs.

On cross-examination, A.J. acknowledged that he had

never seen the [Petitioner] before that day. He acknowledged

that he did not realize the handcuffs were plastic until his

brother told him. He acknowledged that his mother was moving

about the house, even though handcuffed, and that he also could

have moved. He denied that any of them moved after learning

the handcuffs were fake and said that they all stayed on the

ground until the police arrived. He conceded that his feet were

not bound and that his mouth was not gagged.

Memphis Police Officer David Beckham testified that on

October 16, 2002, he arrived at the house at approximately 4:30

a.m. He said that other police officers were already present and

that he heard yelling in the backyard. He said he ran to the back

and observed Officers Jordan and Baker taking a suspect into

custody. He testified he overheard the suspect say he was in the

market to buy some real estate property and was looking at the

backyard because he was interested in purchasing the house. He

identified the codefendant, Jones, as the suspect in custody. He

said he then entered the house and found two adults, two young

children, and two teenagers on the floor. He said at least three

were in handcuffs. He said he secured the house and began

removing the handcuffs. He said one of the teenagers had

removed the handcuffs himself. He said the female adult was

crying, the male adult was angry, and the teenagers were

nervous and frightened.

On cross-examination, Officer Beckham testified that he

recalled seeing the [Petitioner] either in the victims’ backyard or

in the back of the police car on the day of the incident. He said

the victims were able to give only general descriptions of the

perpetrators: five to six African-American males wearing dark

clothing. He acknowledged that they gave no details regarding

facial characteristics. He said the officers recovered three

-7-
handguns, several ski masks, and the victim’s property, which

was scattered throughout the backyard.

Memphis Police Officer Michael Bach testified that he

responded to the call regarding the home invasion robbery in

progress at the victims’ house. He said that other officers were

present when he arrived at approximately 4:30 a.m. and that he

and Officer Beckham assisted in securing the house. He said

Officer Beckham helped the victims out of their handcuffs while

he went to the backyard and helped search for suspects. He said

the officers found the [Petitioner] hiding in some shrubs under

a dock or pier in the backyard of the neighbor’s house. He said

that Officer Baker removed the [Petitioner] from the bushes and

handcuffed him. He said that the [Petitioner] complained he had

two broken legs and that he was transported to the hospital. He

said that he and his partner, Officer Cave, went to the hospital

and recovered from the [Petitioner] a purple Crown Royal bag

containing some quarters. He identified the bag recovered from

the [Petitioner] at the hospital and acknowledged that his name

and that of Officer Cave was written on the evidence envelope.

On cross-examination, Officer Bach was asked if he

recovered the purple Crown Royal bag, and he replied he did

not. He also admitted that he was not present when the bag was

discovered. He said Officer Cave recovered the bag from the

[Petitioner] and then told him about it. He conceded that he did

not know the [Petitioner] was in fact “hiding” in the bushes and

that he did not know what the [Petitioner] was doing in the

bushes or how he came to be there.

Memphis Police Officer William Harsley testified that he

worked in the crime response unit and responded to a call to

take photographs and collect and tag evidence at the crime

scene. He said he collected a .45 caliber pistol and a .38 caliber

pistol. He acknowledged he did not lift fingerprints from any of

the evidence collected, including the pistols. He explained that

due to the texture of the weapons, they would have to be

chemically processed because the fingerprints could not be

removed with powder.

-8-
Memphis Police Officer Jeffrey Jordan testified that he

and Officer Baker were the first officers to arrive at the crime

scene and that they saw a white Chevy van in the driveway with

the motor running. He said they turned off the motor and then

heard some commotion coming from the rear of the house. He

said it sounded like a bunch of people running around, throwing

things. He said he went to the left of the house, kicked the fence

in, and walked around the corner of the house. He said he saw

a black pistol by the swimming pool and heard the commotion

moving away from him. He said he followed the sounds to

another fence which separated the victim’s backyard from the

neighbor’s property. He said that the end of the fence jutted

over the lake and that he saw wet footprints and a dock on the

other side. He said that he also saw one of the suspects lying in

the grass on the neighbor’s property about twenty-five feet from

the fence and asked him how he got there. He said the suspect

replied he was in the adjacent yard inspecting the estate because

he was interested in purchasing the property when a group of

men came running from the house. He said the victim’s

checkbook, driver’s license, and wallet were lying at the

suspect’s feet. He said that the suspect’s ankle was injured and

that the officers had to help him get to the police car.

Memphis Police OfficerJames Baker testified that he and

Officer Jordan arrived at the crime scene at the same time. He

said he positioned his patrol car in the driveway to block a white

van which had a broken window and popped steering column.

He said the van was parked but the motor was running. He said

that he headed for the backyard by the right side of the house

and heard Officer Jordan yell that someone was running to the

right. He said Officer Jordan ordered the suspect to halt and he

did. He said they then found footprints leading through the yard

to the adjacent property and began searching the perimeter of the

yard. He said he saw two boots sticking out from underneath

some bushes near the dock, with the remainder of the body lying

underneath the pier. He said that he asked the [Petitioner] to

come out but that the [Petitioner] replied he could not because

his legs were broken. He said that the officers pulled him out

from under the dock and asked what happened and that the

[Petitioner] replied, “Oh, it was just a drug deal gone bad.” He

-9-
said the [Petitioner] claimed he arrived in the white van parked

in front of the house. He said that the officers handcuffed the

[Petitioner] and sent for an ambulance to transport him to the

hospital.

On cross-examination, Officer Baker acknowledged that

he patted down the [Petitioner] when he was removed from

under the dock in a search for weapons and said that he removed

a flashlight. He said he did not search inside the [Petitioner]’s

pockets.

State v. Larry Holmes, No. W2004-01576-CCA-R3-CD, Shelby County, slip op. at 1-6

(Tenn. Crim. App. July 15, 2005), perm. app. denied (Tenn. Dec. 19, 2005).

In the direct appeal of his convictions, the Petitioner argued that the evidence was

insufficient to support his convictions, that the trial court erred by denying his motion for a

mistrial, and that the trial court erred in sentencing. Regarding his sentences, he contended,

The sentences imposed on Defendant Holmes are excessive, not

only because the severity is not supported fairly by the facts, but

more importantly because while the elements of Especially

Aggravated Kidnapping and Aggravated Robbery do, to some

extent over lap, Defendant Holmes was unfairly sentenced under

a Class A felony rather than a Class A and Class B felony for

two separate indicted crimes arising out of the same singular set

of facts. It is as though the Court and not the Legislature has

decided that the crime of Home Invasion and the taking of

personal property shall be sentenced as one “super-sized”

offense.

Id., slip op. at 10. This court noted that the Petitioner’s appellate counsel had not included

a transcript of the sentencing hearing in the appellate record and stated, “[W]e are at a loss

to determine what he is asking this court to consider. Because we cannot decipher his

contention and his brief on this issue is devoid of citations to authorities or sound argument,

this issue is waived.” Id., slip op. at 11 (citing Tenn. Ct. Crim. App. R. 10(b)).

The Petitioner filed a petition for post-conviction relief alleging that the trial court

violated his due process rights when it merged his convictions for especially aggravated

kidnapping and aggravated robbery, rather than dismissing the convictions for especially

aggravated kidnapping as incidental to the robberies. The Petitioner also argued that counsel

-10-
was ineffective for failing to include the transcript of the sentencing hearing in the appellate

record and for inadequately articulating the sentencing issue on appeal.

At the post-conviction hearing, the Petitioner testified that he hired counsel to

represent him at the trial and on appeal. He was incarcerated from the time of his arrest and

met with counsel at the jail approximately three times, with little to no communication

otherwise. The Petitioner claimed that he could not understand counsel’s explanation of

legal matters because he had a seventh-grade education. He said that he was a victim of the

robbers, not a perpetrator, and that when he arrived at the scene, the robbers assaulted him

with a bat and threw him in the lake near the house. The Petitioner testified that counsel did

not present a defense at the trial. He recalled a case named State v. Anthony being discussed

at the motion for new trial hearing and at sentencing. He said that he did not communicate

with counsel about the appeal process or what counsel planned to argue on appeal. The

Petitioner said that counsel requested an oral argument but waived it due to a procedural

matter and that counsel waived the sentencing issue presented on appeal because counsel did

not “make it clear what he was asking for.”

On cross-examination, the Petitionerstated that he met with counsel four to five times.

He further stated that a friend hired counsel on his behalf. The Petitioner said he complained

to his family about counsel’s representation but not to the friend who hired counsel or to the

trial judge.

Counsel testified that he had known the Petitioner since 1995 and that he represented

the Petitioner before the instant case. He said he thought the Petitioner’s version of the

circumstances surrounding the offenses in this case was not “juror friendly” because it

involved the sale of cocaine. Counsel said the Petitioner had eight prior felony convictions.

He did not remember what occurred at the sentencing hearing. Counsel testified that he did

not know why the sentencing transcript was not filed with the rest of the trial documents. He

stated that the trial judge correctly analyzed the Anthony issue and that the merger of the

aggravated robbery convictions and the especially aggravated kidnapping convictions was

the correct outcome. He said, however, that he wanted the judge to sentence the Petitioner

on the aggravated robbery convictions rather than the especially aggravated kidnapping

convictions. He said he preserved the issue for appeal and included it in his motion for a new

trial. At the time, he did not suggest that the correct disposition would have been to dismiss

the kidnapping convictions. Counsel said he considered Anthony to be a double jeopardy

issue rather than a due process issue.

On cross-examination, counsel testified that he thought the kidnapping of the victims

in this case went beyond that necessary to accomplish the robbery. He said the Petitioner

filed a complaint about not receiving documents against him with the Board of Professional

-11-
Responsibility during the appellate process. Counsel explained that as a result of the

complaint, he discovered that new federal laws were causing some inmates not to receive

their mail. He said the Petitioner’s complaint disrupted his work on the Petitioner’s appeal.

After considering the testimony and the evidence presented, the trial court concluded

that counsel’s representation on appeal was “within the range of reasonable professional

assistance.” The court dismissed the Petitioner’s claim that the trial court erred when

sentencing him on the especially aggravated kidnapping convictions, reasoning that the issue

was waived as a result of his failing to present the issue fully on direct appeal.

On appeal, the Petitioner contends that the trial court erred by merging his aggravated

robbery convictions into his especially aggravated kidnapping convictions, rather than

dismissing the especially aggravated kidnapping convictions. He further contends that

counsel’s representation on appeal was ineffective because counsel failed to articulate the

Anthony issue. The State responds that the trial court properly ruled that the Petitioner had

waived the Anthony issue and that counsel’s appellate representation did not prejudice the

outcome of the proceeding.

The burden in a post-conviction proceeding is on the petitioner to prove his grounds

for relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006). On appeal, we

are bound by the trial court’s findings of fact unless we conclude that the evidence in the

record preponderates against those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn.

2001). Because they relate to mixed questions of law and fact, we review the trial court’s

conclusions as to whether counsel’s performance was deficient and whether that deficiency

was prejudicial under a de novo standard with no presumption of correctness. Id. at 457.

Post-conviction relief may only be given if a conviction or sentence is void or voidable

because of a violation of a constitutional right. T.C.A. § 40-30-103 (2006).

I

The Petitioner argues that the trial court should have dismissed his especially

aggravated kidnapping convictions under State v. Anthony, 817 S.W.2d 299 (Tenn. 1991).

He characterizes the kidnapping convictions as “incidental” and contends that due process

does not permit convictions for both aggravated robbery and especially aggravated

kidnapping. The State responds that the Petitioner waived the issue because it was not raised

on direct appeal and that the Petitioner has not demonstrated constitutional error on the

merits of the issue. We hold that the issue is waived as a free-standing constitutional claim.

In the conviction proceedings, the trial court merged the Petitioner’s aggravated

robbery convictions with his especially aggravated kidnapping convictions and sentenced the

-12-
Petitioner for the especially aggravated kidnapping convictions. On appeal, this court noted

that the sentencing hearing transcript was not included in the appellate record. Regarding

the sentencing argument, this court said, “We are at a loss to determine what [the Petitioner]

is asking for in his brief,” and held that consideration of the issue was waived because the

court could not determine the Petitioner’s contention. The court also noted that the

Petitioner’s brief did not contain citations to authorities or sound argument. Despite the lack

of clarity in the Petitioner’s sentencing argument on direct appeal, we note that trial counsel

raised a sentencing issue relative to the especially aggravated kidnapping convictions on

direct appeal, not a due process issue with the convictions themselves. We also note that in

the present post-conviction action, the Petitioner has raised the due process issue as a freestanding claim but has not raised an issue of ineffectiveness of trial counsel in failing to raise

the due process issue in the conviction proceedings.

Our post-conviction statute provides for waiver of issues that could have been, but

were not raised in a previous proceeding. T.C.A. § 40-30-106(g) (2006). The trial court

merged the aggravated robbery and especially aggravated kidnapping convictions. The

Petitioner’s claim that the especially aggravated kidnapping convictions should have been

dismissed, rather than merged, could have been raised in the direct appeal. Because it was

not, consideration of it at this juncture is waived. See, e.g., House v. State, 911 S.W.2d 705,

713-14 (Tenn. 1995).

We note, though, that the Petitioner based his ineffective assistance claim in part on

counsel’s failure to address the Anthony issue properly as part of his sentencing argument

on appeal. We will address the issue below in that context.

II

The Petitioner arguesthat trial counsel provided ineffective assistance on direct appeal

by failing to include the transcript of the sentencing hearing in the record and by failing to

present a coherent sentencing argument. The State responds that the trial court properly

denied relief because the Petitioner did not establish that he was prejudiced by counsel’s

performance.

Under the Sixth Amendment, when a claim of ineffective assistance of counsel is

made, the burden is on the Petitioner to show (1) that counsel’s performance was deficient

and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687

(1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). In other words, a showing

that counsel’s performance fell below a reasonable standard is not enough because the

Petitioner must also show that but for the substandard performance, “the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694. The Strickland

-13-
standard has been applied to the right to counsel under article I, section 9 of the Tennessee

Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

A petitioner will only prevail on a claim of ineffective assistance of counsel after

satisfying both prongs of the Strickland test. Henley v. State, 960 S.W.2d 572, 580 (Tenn.

1997). The performance prong requires a petitioner raising a claim of ineffectiveness to

show that the counsel’s representation fell below an objective standard of reasonableness or

“outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690.

The prejudice prong requires a petitioner to demonstrate that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Id. at 694. A reasonable probability means a “probability sufficient

to undermine confidence in the outcome.” Id.

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 attorneysin 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). Baxter, 523 S.W.2d at 936. 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; see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

Thus, the fact that a particular strategy or tactic failed or even hurt the defense does not,

alone, support a claim of ineffective assistance. Cooper v. State, 847 S.W.2d 521, 528

(Tenn. Crim. App. 1992). Deference is made to trial strategy or tactical choices if they are

informed ones based upon adequate preparation. See DeCoster, 487 F.2d at 1201; Hellard,

629 S.W.2d at 9.

As we have noted, trial counsel raised a sentencing issue but failed to supplement the

direct appeal record with the transcript of the sentencing hearing. See Larry Holmes, slip op.

at 13-14. Due to insufficiencies in trial counsel’s argument relative to sentencing, this court

treated the sentencing review as waived. Counsel’s failures in this respect were deficient

performance.

The remaining question is whether the Petitioner was prejudiced by counsel’s

shortcomings. The Petitioner contends that there was not sufficient proof to support

independent convictions for both aggravated robbery and especially aggravated kidnapping

and that the absence of the sentencing transcript and adequate argument prevented the

appellate court from dismissing the especially aggravated kidnapping convictions on due

-14-
process grounds. Regarding the question of prejudice, we note that the trial court merged the

aggravated robbery convictions with the higher-grade especially aggravated kidnapping

convictions and sentenced the Petitioner for the greater offenses. This court held in the

Petitioner’s direct appeal that sufficient proof supported the merged convictions. We note,

as well, that in the jointly tried co-defendant’s appeal, this court said the following with

respect to the co-defendant’s Anthony claim that arose under the same facts and in the same

trial proceeding as the Petitioner’s:

In our view, the confinement of the victims was beyond

that necessary for the commission of the aggravated robberies.

The defendant [Jones] and his accomplices [one of whom was

the Petitioner] were armed with handguns and used them to

subdue the victims. They chose to further restrain the victims by

handcuffing them behind their backs, requiring them to lie

face-down. Ms. Boyce was the only robbery victim. The

perpetrators, however, chose to confine all of the occupants of

the residence. The two teenaged boys downstairs had slept

through the break-in and, behind the closed door of their

bedroom, were not an apparent threat to the defendant and his

cohorts. Nonetheless, the boys were awakened, cuffed, and

moved to the hallway with Ms. Boyce’s brother. After learning

that one of Ms. Boyce’s children, the one who had fled to a

neighbor’s residence, was unaccounted for, the perpetrators

were determined to find and confine him as well. This

demonstrates a separate intent from robbery. That the police

arrived and interrupted the crimes, preventing further physical

harm to the victims, does not change the analysis. The

handcuffing of the victims would have hindered their efforts to

seek aid, increased their risk of harm, and lessened the

defendant’s risk of detection.

In support of his argument, the defendant specifically

directs this court to State v. Coleman, 865 S.W.2d 455 (Tenn.

1993). In Coleman, the defendant forced the victim, a shoe

store clerk, to empty the cash register at gunpoint. After his

accomplice left with the money, the defendant directed the

victim into a back room, where he ordered her to undress, raped

her, and, before leaving, instructed her not to get up. 865

S.W.2d at 456-57. The defendant was convicted of armed

robbery, aggravated rape, and aggravated kidnapping. Our high

-15-
court, however, reversed the kidnapping conviction pursuant to

Anthony.

In our view, the facts of Coleman are distinguishable

from the facts in this case. In Coleman, the victim was not

physically restrained and was directed to the back room of the

store to facilitate the rape. After the assault, the defendant did

not lock or otherwise block the door. In this case, however,

each of the victims was handcuffed behind his or her back and

forced to lie face-down, a position which rendered them

defenseless and largely immobilized. Accordingly, the

defendant is not entitled to relief on this issue.

State v. Lacey Jones, No. W2004-01628-CCA-R3-CD, Shelby County, slip op. at 3 (Tenn.

Crim. App. Aug. 4, 2005), perm. app. denied (Tenn. Dec. 19, 2005).

When faced with the question of merger of the aggravated robbery convictions with

the especially aggravated kidnapping convictions in the co-defendant’s direct appeal, this

court said:

Initially, the two aggravated robbery convictions are for

the taking of jewelry from Trina Boyce. The state merely

charged the defendant [Jones] with different theories of

culpability. Accordingly, it would have been both necessary

and appropriate for the trial court to have merged one conviction

into the other. That having been said, the trial court did not, in

our view, exceed its authority when it merged the defendant’s

aggravated robbery convictions into the convictions for

especially aggravated kidnapping. As already determined, the

dual convictions for aggravated robbery and especially

aggravated kidnapping did not violate the principles of due

process. Nevertheless, the trial court merged the convictions

and declined to sentence the defendant separately for the

aggravated robbery. With regard to merger, this court has

previously stated that “‘the trial court has the power to enter the

appropriate judgment. This authority does not impinge upon or

amend the verdict so long as the judgment does not subject the

defendant to a conviction and sentence which exceeds the jury’s

determination of culpability.’” State v. Price, 46 S.W.3d 785,

825 (Tenn. Crim. App. 2000) (quoting State v. Hill, 856 S.W.2d

-16-
155, 157 (Tenn. Crim. App. 1993)). Had the trial court not

merged the offenses, the defendant would have been exposed to

an additional consecutive sentence. Thus, any error inured to

the benefit of the defendant and does not give rise to relief.

Lacey Jones, slip op. at 4. Given this court’s ruling in the jointly tried co-defendant’s direct

appeal, we conclude that the Petitioner would not have obtained relief had trial counsel

presented a complete record on appeal and adequately argued that the especially aggravated

kidnapping convictions and the resulting sentences violated due process. The Petitioner,

thus, has not shown that he was prejudiced by trial counsel’s deficient performance. The

Petitioner is not entitled to relief.

In consideration of the foregoing and the record as a whole, the judgment of the trial

court is affirmed.

___________________________________

JOSEPH M.TIPTON,PRESIDING JUDGE

-17-