IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs at Knoxville August 16, 2016 

LUIS GUILLEN v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 10-04491 Lee V. Coffee, Judge

No. W2016-00198-CCA-R3-PC - Filed November 22, 2016

The Petitioner, Luis Guillen, appeals the Shelby County Criminal Court‟s denial of his 

petition for post-conviction relief from his convictions of one count of aggravated rape 

and three counts of aggravated kidnapping and resulting effective thirty-five-year 

sentence. On appeal, the Petitioner contends that he received the ineffective assistance of 

counsel. Based upon the record and the parties‟ briefs, we affirm the judgment of the 

post-conviction court. 

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JAMES CURWOOD 

WITT, JR., and D. KELLY THOMAS, JR., JJ., joined.

Genna M. Lutz, Memphis, Tennessee, for the appellant, Luis Guillen. 

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant 

Attorney General; Amy P. Weirich, District Attorney General; and Jose Leon, Assistant 

District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

In July 2010, the Shelby County Grand Jury indicted the Petitioner for one count 

of aggravated rape, a Class A felony, and three counts of aggravated kidnapping, a Class 

B felony, for events that occurred between December 26, 2009, and December 31, 2009. 

In January 2012, a jury convicted the Petitioner as charged. After a sentencing hearing, 

the trial court merged the aggravated kidnapping convictions and sentenced him as a 
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Range I, violent offender to consecutive sentences of twenty-five years for aggravated 

rape and ten years for aggravated kidnapping. 

On direct appeal of his convictions to this court, the Petitioner argued that the 

evidence was insufficient to support the convictions and that his effective thirty-five-year 

sentence was excessive. State v. Luis Guillen, No. W2012-00826-CCA-R3-CD, 2013 

WL 4007532, at *1 (Tenn. Crim. App. at Jackson, Aug. 2, 2013), perm. to appeal denied, 

(Tenn. Dec. 10, 2013). This court concluded that the evidence was sufficient, stating as 

follows:

Evidence sufficient to support the jury‟s conclusion 

with respect [to] each of these elements [of aggravated rape] 

is contained in the record. The victim testified that the 

defendant attacked her and forced intercourse on her both 

over her resistance and against her will, notwithstanding her 

repeated pleas that she did not want to have sex. The victim 

testified that she was repeatedly beaten by the defendant 

during the assault and that she was injured as a result. The 

victim‟s testimony concerning her injuries was supported by 

numerous photographs presented at trial as well as by the 

testimony of law enforcement officers and medical personnel 

who treated her after the attack.

. . . .

Evidence sufficient to support the jury‟s conclusion 

with respect each of these elements [of aggravated 

kidnapping also] is contained in the record. The State 

presented considerable evidence at trial the defendant 

confined the victim at his residence for a period of nearly four 

days against her will. In addition to the victim‟s direct 

testimony on the subject, her testimony on these issues was 

supported by considerable circumstantial evidence, including 

the victim‟s friend‟s testimony concerning the unusual length 

of time that she was gone, her unusual behavior during 

conversations that they had with her on the phone, and the 

fear and anxiety that she exhibited immediately upon being 

returned home.

With respect to the remaining elements of aggravated 

kidnapping, the State presented sufficient evidence to support 
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the jury‟s finding that the victim was injured during her 

period of confinement for the reasons we have previously 

summarized. The jury could also reasonably infer, based on 

the victim‟s testimony and that of other witnesses at trial, that 

the purpose of this confinement was to facilitate the rape and 

to prevent the victim from reporting it afterward.

Id. at *13. In addition, this court concluded that the trial court properly sentenced the 

Petitioner. Id. at *14.

After our supreme court denied the Petitioner‟s application for permission to 

appeal, he filed a timely pro se petition for post-conviction relief alleging, in pertinent 

part, that he received the ineffective assistance of counsel. The post-conviction court 

appointed counsel, and counsel filed an amended petition. 

Relevant to this appeal, the Petitioner alleged in the amended petition that trial 

counsel was ineffective for failing to request adequate and appropriate jury instructions. 

At the evidentiary hearing, trial counsel testified that he received discovery, which 

included the offense report, police reports, and the victim‟s statement, and that he went 

over the discovery with the Petitioner. Spanish was the Petitioner‟s native language, but 

he spoke “some English.” Counsel‟s secretary also spoke Spanish, and she would 

translate over the telephone for counsel when counsel met with the Petitioner. The State 

offered to let the Petitioner plead guilty to rape, a Class B felony, in exchange for an 

eight-year sentence to be served at eighty-five-percent release eligibility. However, the 

Petitioner “flatly refused” the offer.

Trial counsel testified that he advised the Petitioner not to testify at trial because 

the Petitioner was “cocky and arrogant” at times and had two large tattoos in the shape of 

teardrops under his eyes. Counsel was concerned that the State would question the 

Petitioner about the tattoos and his gang involvement in Mexico. Counsel also thought 

the Petitioner would not make a good witness, explaining as follows:

[O]ur theory of the case was that he and [the victim] were 

dating, that they had gone to dinner, that they returned to his 

apartment and that they had sexual intercourse after they 

returned to his apartment, that she received a text message 

from a former boyfriend, and Mr. Guillen saw this text 

message, became angry and then beat her but did not have 

any further relations with [her].
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In speaking with Mr. Guillen, one of the versions he 

told us was that all of that had certainly happened, but after he 

severely beat her, then they had further relations, and in his 

mind, those further relations after the beating were 

consensual, and I could not ever get him to understand that a

woman who was severely beaten and had a broken nose and a 

fractured skull could [not] consent to relations or would [not] 

want to have sex at that point, and I was afraid that that 

version would come out.

Despite counsel‟s advice, the Petitioner chose to testify.

Trial counsel testified that he also represented the Petitioner on direct appeal of the 

Petitioner‟s convictions and that he was aware of our supreme court‟s opinion in State v. 

White. He said he did not “recall the rationale” for not raising a White issue in the 

Petitioner‟s motion for new trial but that “I believe it had to do with the Court‟s holding 

that retroactive application of White was not required.” He also stated, “I should have 

[raised the issue], in retrospect.”

On cross-examination, trial counsel testified that he became licensed to practice 

law in October 1997 and had been practicing law eighteen years at the time of the postconviction evidentiary hearing. He practiced only criminal law. He said that he did not 

understand how the jury convicted the Petitioner of aggravated kidnapping “given the 

numerous opportunities that [the victim] had to just walk out of the apartment” and that 

the Petitioner thought the Petitioner was guilty of assault and false imprisonment. 

Regarding counsel‟s failure to raise a White issue in the motion for new trial or on direct 

appeal of the Petitioner‟s convictions, counsel stated, “My understanding was the 

application was not retroactive.” 

On redirect examination, trial counsel testified that “the facts of the case were that 

the rape happened one day and the confinement went on for several days.” The State‟s 

original plea offer was a guilty plea to rape in exchange for an eighteen-year sentence to 

be served at eighty-five percent release eligibility. Although counsel negotiated the offer 

down to eight years, the Petitioner told counsel that “a plea to a felony was out of the 

question.”

The Petitioner testified through an interpreter that trial counsel met with him in jail 

twice. They also met in the “lock-up area” when the Petitioner came to court. The 

Petitioner said he and counsel did not have much time to discuss his case because counsel 

“was busy in Court and they were calling him.” The Petitioner had discovery materials, 

but trial counsel never discussed the discovery materials with him. Counsel told the 
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Petitioner about a fifteen-year plea offer from the State to be served at eighty-five percent 

release eligibility. 

The Petitioner testified that he and counsel discussed the Petitioner‟s testifying at 

trial. However, they did not discuss his testifying until the day he was scheduled to 

testify, and the Petitioner had “[f]ifteen minutes, thirty minutes, something like that” to 

decide. The Petitioner asked counsel “what chance did [he] have to win” if he testified. 

Counsel told the Petitioner that the victim‟s testimony was inconsistent, that the 

Petitioner had a “fifty-fifty chance of winning or losing,” and that counsel was concerned 

about the jury‟s seeing the Petitioner‟s tattoos. 

On cross-examination, the Petitioner testified that he and trial counsel got along 

well for the “few times” he saw counsel. Counsel never brought his Spanish-speaking 

assistant to meet with the Petitioner, but the Petitioner spoke with her “for a moment” by 

telephone. The Petitioner acknowledged that the State‟s original plea offer may have 

been for eighteen years and said, “I don‟t remember.” He said he did not know about our 

supreme court‟s opinion in State v. White and never asked that counsel raise a White

issue.

At the conclusion of the hearing, the post-conviction court noted that the trial court 

read the pattern jury instructions in effect at the time of trial, which did not include a 

White instruction. The post-conviction court then stated that, in any event,

[t]here is absolutely no way that these facts would support a 

contention that this is plain error in this case, . . . and what the 

trial record shows is that this is an offense that took place 

over four days. This young woman was beaten, she was held 

hostage, she was afraid to call for help. When she talked to 

someone on the phone, Mr. Guillen was there with her all the 

time monitoring exactly what was being said. When he was 

not there, she did not have use of her cell phone. And this is a 

situation where she‟s held hostage, beaten for four days, and 

the kidnapping, the confinement in this case, is not incidental. 

The court noted that this court could have addressed the issue as plain error in its direct 

appeal opinion of the Petitioner‟s convictions but chose not to do so. The post-conviction 

court found that the Petitioner was not prejudiced by counsel‟s failure to raise the White 

issue and that he was not entitled to relief.

II. Analysis
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On appeal, the Petitioner maintains that he received the ineffective assistance of 

counsel because trial counsel failed to argue in the motion for new trial or on direct 

appeal of the Petitioner‟s convictions that the trial court erred by failing to instruct the 

jury pursuant to State v. White. He argues that a White instruction was required because 

“the proof in his case could have been interpreted in different ways” and, therefore, the 

jury should have decided whether his removal or confinement of the victim was 

essentially incidental to the accompanying offense of aggravated rape. The State argues 

that the Petitioner is not entitled to relief. We agree with the State. 

To be successful in a claim for post-conviction relief, a petitioner must prove the 

factual allegations contained in the post-conviction petition by clear and convincing 

evidence. See Tenn. Code Ann. § 40-30-110(f). “„Clear and convincing evidence means 

evidence in which there is no serious or substantial doubt about the correctness of the 

conclusions drawn from the evidence.‟” State v. Holder, 15 S.W.3d 905, 911 (Tenn. 

Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 

1992)). Issues regarding the credibility of witnesses, the weight and value to be accorded 

their testimony, and the factual questions raised by the evidence adduced at trial are to be 

resolved by the post-conviction court as the trier of fact. See Henley v. State, 960

S.W.2d 572, 579 (Tenn. 1997). Therefore, the post-conviction court‟s findings of fact are 

entitled to substantial deference on appeal unless the evidence preponderates against 

those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

A claim of ineffective assistance of counsel is a mixed question of law and fact. 

See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction 

court‟s findings of fact de novo with a presumption that those findings are correct. See

Fields, 40 S.W.3d at 458. However, we will review the post-conviction court‟s 

conclusions of law purely de novo. Id.

When a petitioner seeks post-conviction relief on the basis of ineffective 

assistance of counsel, “the petitioner bears the burden of proving both that counsel‟s 

performance was deficient and that the deficiency prejudiced the defense.” Goad v. 

State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 

687 (1984)). To establish deficient performance, the petitioner must show that counsel‟s 

performance was below “the range of competence demanded of attorneys in criminal 

cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the

petitioner must show that “there is a reasonable probability that, but for counsel‟s 

unprofessional errors, the result of the proceeding would have been different. A 

reasonable probability is a probability sufficient to undermine confidence in the 

outcome.” Strickland, 466 U.S. at 694. Generally, [b]ecause a petitioner must establish 

both prongs of the test, a failure to prove either deficiency or prejudice provides a 

sufficient basis to deny relief on the ineffective assistance claim. Indeed, a court need not 
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address the components in any particular order or even address both if the [petitioner] 

makes an insufficient showing of one component. Goad, 938 S.W.2d at 370 (citing 

Strickland, 466 U.S. at 697).

Turning to the instant case, the State charged the Petitioner with aggravated rape 

and three alternative theories of aggravated kidnapping, i.e., false imprisonment 

committed to facilitate the commission of a felony, false imprisonment committed with 

the intent to terrorize the victim, and false imprisonment where the victim suffers serious 

bodily injury. See Tenn. Code Ann. § 39-13-304(a)(1), (3), (4). False imprisonment is 

defined as the knowing removal or confinement of another unlawfully so as to interfere 

substantially with the other‟s liberty. Tenn. Code Ann. § 39-13-302(a). The jury 

ultimately convicted the Petitioner of all four offenses as charged. 

Our case law reveals a long-standing issue regarding the legitimacy of a 

kidnapping conviction when the act(s) establishing the offense occurred during an 

accompanying felony. In State v. Anthony, 817 S.W.2d 299, 301 (Tenn. 1991), a jury 

convicted the defendant of the armed burglary of a Shoney‟s restaurant, the armed 

robbery of the restaurant‟s manager, and the aggravated kidnappings of the manager and 

five other employees. In a split decision, this court reversed all of the aggravated 

kidnapping convictions, holding that “[u]nless independent and separate fact patterns for 

both the armed robbery and the aggravated kidnapping can be proven, appellant can be 

convicted of only the armed robbery.” Anthony, 817 S.W.2d at 30. Our supreme court, 

citing due process concerns, held that before a separate kidnapping conviction may be 

sustained, there must be a determination of

whether the confinement, movement, or detention [was] 

essentially incidental to the accompanying felony and [was] 

not, therefore, sufficient to support a separate conviction for 

kidnapping, or whether it [was] significant enough, in and of 

itself, to warrant independent prosecution and [was], 

therefore, sufficient to support such conviction.

Id. at 306. After its own analysis, our supreme court affirmed this court‟s decision. Id. at 

307-08.

Later, in State v. Dixon, 957 S.W.2d 532, 535 (Tenn. 1997), our supreme court 

modified the Anthony court‟s “essentially incidental” analysis and established a twoprong test for determining whether a separate conviction for kidnapping violates due 

process. The first step concerned a determination of whether the movement or 

confinement was beyond that necessary to commit the accompanying felony. Id. If so, 

the second step concerned ascertaining whether the additional movement or confinement 
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(1) prevented the victim from summoning help; (2) lessened the appellant‟s risk of 

detection; or (3) created a significant danger or increased the victim‟s risk of harm. Id.

In White, our supreme court expressly overruled Anthony and its progeny, holding 

that “[t]he separate due process test articulated first in Anthony, and subsequently refined 

in Dixon . . . , is . . . no longer necessary to the appellate review of a kidnapping 

conviction accompanied by a separate felony.” 362 S.W.3d at 578. Instead, the court 

held that “whether the evidence, beyond a reasonable doubt, establishes each and every 

element of kidnapping, as defined by statute, is a question for the jury properly instructed 

under the law,” thereby concluding that a defendant‟s constitutional concerns are 

protected by appellate review of the sufficiency of the convicting evidence. Id. at 577-

78. Therefore, our supreme court cautioned 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. To effectuate this end, our supreme court devised the following instruction to be 

given by trial courts:

To establish whether the defendant‟s removal or confinement 

of the victim constituted a substantial interference with his or 

her liberty, the State must prove that the removal or 

confinement was to a greater degree than that necessary to 

commit the offense of [insert offense], which is the other 

offense charged in this case. In making this determination, 

you may consider all the relevant facts and circumstances of 

the case, including, but not limited to, the following factors:

• the nature and duration of the victim‟s 

removal or confinement by the defendant;

• whether the removal or confinement occurred 

during the commission of the separate offense;

• whether the interference with the victim‟s 

liberty was inherent in the nature of the separate 

offense;

• whether the removal or confinement prevented 

the victim from summoning assistance, 

although the defendant need not have succeeded 

in preventing the victim from doing so;
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• whether the removal or confinement reduced 

the defendant‟s risk of detection, although the 

defendant need not have succeeded in this 

objective; and

• whether the removal or confinement created a 

significant danger or increased the victim‟s risk 

of harm independent of that posed by the 

separate offense.

Id. at 580-81 (footnote omitted).

Our review of the jury instructions in this case confirms that the trial court 

instructed the jury in accordance with the pattern jury instruction for aggravated 

kidnapping in effect at the time of the Petitioner‟s trial and “did not define the key 

element—the substantial interference with the victim‟s liberty—as requiring a finding by 

the jury that the victim‟s removal or confinement was not essentially incidental to the

accompanying felony offense.” White, 362 S.W.3d at 580. Moreover, although our 

supreme court filed White on March 9, 2012, which was after the Petitioner‟s trial, trial 

counsel filed the Petitioner‟s motion for new trial on March 23, 2012. Thus, counsel, 

who testified that he was aware of White but did not think White applied retroactively,

could have raised a White issue in the Petitioner‟s motion for new trial and on direct 

appeal of the Petitioner‟s convictions. See State v. Bennie Osby, No. W2012-00408-

CCA-R3-CD, 2012 WL 5381371, at *7 (Tenn. Crim. App. at Jackson, Nov. 2, 2012), 

perm. to appeal denied, (Tenn. 2013) (concluding that our supreme court “intended 

retroactive application of the ruling to those already tried cases in the appellate pipeline, 

that is pending direct appeal, at the time it was filed and that its use of the word 

„retroactive‟ was intended to prevent use of the ruling for collateral attack”).

Regardless, even if counsel was deficient for failing to raise the issue, we conclude 

that the Petitioner was not prejudiced. The evidence shows that the Petitioner raped the 

victim and then confined her to his apartment for several days. Thus, we have no 

hesitation in concluding that the Petitioner‟s confinement of the victim was not 

essentially incidental to the accompanying aggravated rape and was not subject to 

different interpretations by the jury. Accordingly, the Petitioner would have been 

unsuccessful if counsel had raised the White issue in the motion for new trial or on direct 

appeal of the Petitioner‟s convictions, and the Petitioner is not entitled to post-conviction 

relief.
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III. Conclusion

Based upon the record and the parties‟ briefs, we affirm the judgment of the postconviction court.

_________________________________ 

NORMA MCGEE OGLE, JUDGE