07/10/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs May 17, 2017

COREY CORTEZ ABERNATHY v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Hamilton County

No. 287830 Barry A. Steelman, Judge

No. E2016-01258-CCA-R3-PC

In 2012, the Petitioner, Corey Cortez Abernathy, pleaded guilty to burglary of an 

automobile and theft of property and agreed to a sentence of two years of incarceration.

In 2013, the Petitioner filed a petition for post-conviction relief based upon ineffective 

assistance of counsel. The post-conviction court held a hearing on the petition and 

denied relief. On appeal, the Petitioner alleges that he was deprived of the effective 

assistance of counsel because his counsel failed to file a motion to suppress illegally 

obtained evidence. We affirm the post-conviction court’s judgment. 

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which THOMAS T.

WOODALL, P.J., and JOHN EVERETT WILLIAMS, J., joined.

Lorrie Miller, Chattanooga, Tennessee, for the appellant, Corey Cortez Abernathy.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant 

Attorney General; M. Neal Pinkston, District Attorney General; and Amanda G. 

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

OPINION

I. Facts and Procedural History

This case arises from the Petitioner’s burglary of an automobile. For this offense, 

a Hamilton County grand jury indicted the Petitioner for burglary of an automobile and 

theft of property.

A. Guilty Plea
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Prior to entering a plea, the Petitioner complained that he had not received the 

effective assistance of counsel from his attorney (“Counsel”) and asked to be appointed a 

new attorney. The trial court denied his request and set a trial date. On that date, the trial 

court informed the Petitioner that it had reconsidered his request to have a new attorney 

appointed, but the Petitioner informed the trial court that a new attorney would not be 

necessary and that he would like to resolve his case while represented by Counsel. 

Counsel informed the trial court that it was her understanding that the Petitioner wished 

to plead guilty. The Petitioner affirmed that was his decision. 

The State then recited the following facts as a basis for the trial court’s acceptance 

of the Defendant’s guilty plea:

[The] State’s proof would have been that on December the 2

nd

, [the 

Petitioner] burglarized a vehicle belonging to Derek Weaver, and took a 

laptop.

And the State’s proof . . . [would have been] the police made contact 

on December the 9

th with [the Petitioner] and he was found to be in 

possession of a GPS belonging to Dr. Tom Bibler, a former professor at 

UTC, and it was found that his car had been burglarized also.

The trial court then asked if the Petitioner was entering a plea freely and 

voluntarily, to which the Petitioner replied that he was. The trial court then sentenced the 

Petitioner to two years for each conviction to be served concurrently in the Tennessee 

Department of Correction.

B. Post-Conviction Proceedings

The Petitioner filed a petition for post-conviction relief, pro se, alleging that: he

had received the ineffective assistance of counsel; his conviction was based on illegally 

seized evidence; and he had entered his guilty plea unknowingly and involuntarily. The 

post-conviction court appointed an attorney and subsequently held a hearing, during 

which the following evidence was presented: the Petitioner testified that Counsel asked 

to be removed from his case but that the trial court denied this request. The Petitioner 

explained that his conflict with Counsel was that she recommended he plead guilty after 

viewing video footage of him breaking into the car. The Petitioner disagreed that it was 

him in the video. He also felt that there were grounds for suppression in his case, a 

contention with which Counsel did not agree. The Petitioner testified that police 

observed him with a backpack that contained the stolen laptop and that they “took it upon 

themselves” to search the backpack without his permission and despite the fact that he 
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did not claim ownership of it. He testified that Counsel told him that a motion to 

suppress would not help his case. The Petitioner told Counsel that since she wanted him 

to plead guilty, and he did not want to, that she should not represent him. 

On cross-examination, the Petitioner agreed that the stolen laptop was recovered 

from his friend’s residence and that he was arrested there. He clarified that a police 

officer saw him enter the friend’s residence and that, when he exited the residence 

through the backdoor, the police questioned him about where he was going. The police 

questioned him about a backpack he had been wearing earlier, and the Petitioner replied 

that he had left the backpack inside the residence. The police asked for permission to 

retrieve the backpack and search it, and the Petitioner replied that he could not give 

permission to search something that was not his. The Petitioner was placed in the back of 

the police car, and the police entered the residence; he agreed that he was not present 

when the backpack was searched. 

The Petitioner agreed that he watched the video of the automobile burglary. He 

agreed that he had prior convictions for burglary. The Petitioner recalled that he asked 

Counsel to file a motion to dismiss the case based on the fact that he could not be 

identified in the video recording. As for entering a guilty plea, the Petitioner stated that 

he understood he had the right to a jury trial but would have lost; he knew this because he 

had “been to trial before.” Counsel advised the Petitioner that it was best for him to plead 

guilty. The Petitioner did not recall that, when next before the trial court, the trial court 

offered to replace Counsel with a new attorney. The Petitioner did not remember 

declining to have a new attorney appointed to his case. 

The Petitioner testified that Counsel conveyed the State’s offer to him and said it 

was “the best thing going.” The Petitioner knew that the consequences would be a lot 

worse if he went to trial and lost because of his prior felonies. The Petitioned maintained 

that his case had grounds for suppression that Counsel never discussed with him,

however, he stated that he did not know about those grounds until after he elected to 

plead guilty. If he had known “that my Fourth Amendment right had been violated,” he 

would have not pleaded guilty. 

On redirect-examination, the Petitioner explained that he asked Counsel if his case 

had any grounds for suppression, and she replied that it did not. Based on this advice, he 

elected to plead guilty.

Counsel testified that she was appointed to represent the Petitioner on two theft 

and burglary cases. In this case, she received the discovery file and later the video 

recordings taken of the automobile burglary. Together with the Petitioner she watched 

the video recording. The State conveyed to Counsel an offer for the Petitioner to plead 
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guilty and serve two years in prison with “determinant release,” and a second offer to 

plead guilty with a two-year sentence suspended after eleven months and twenty-nine 

days. Counsel felt that the second offer would result in shorter prison time for the 

Petitioner. 

About the motion to dismiss, Counsel said that arose because of the determined 

value of the stolen laptop. The Petitioner was of the opinion that the value was less than 

the indicted charge, which Counsel explained was a question of fact for the jury. Counsel 

then spoke with the Petitioner about the next step, but he remained focused on the motion 

to dismiss and why Counsel would not file it. Counsel explained that it was not an 

appropriate motion to file on that basis and the Petitioner “didn’t receive that very well.” 

Counsel researched the value of comparable laptops and other variables. 

Counsel did not feel that any motions were necessary to file based on the video 

recordings. She recalled that the recordings did not show the face of the burglar but said 

that the man depicted was very similar to the Petitioner, particularly his stance and gait. 

In her opinion, the man in the video was the Petitioner. Counsel agreed that she told the 

Petitioner it was in his best interest to enter a plea “because if he had been convicted in 

the appropriate range, he would have gotten more time” and “the evidence was sufficient 

to convict him.” 

On cross-examination, Counsel reiterated that, in her opinion, a jury viewing the 

video would see the similarities between the man depicted and the Petitioner, based on 

the body build, shape, size, and the way the man walked. Counsel did not recall 

discussing with the Petitioner, or him asking her to file, a motion to suppress evidence. 

Her only recollection was the discussion about filing the motion to dismiss. Counsel 

discussed with the Petitioner his options as far as pleading guilty, going to trial, and

trying to renegotiate the State’s offers. 

On the day the Petitioner pleaded guilty, Counsel spoke with him in private about 

the plea offer. She did not recall a discussion about suppression of evidence. She opined 

that there would not have been grounds for suppression in this case because the laptop 

was found in someone else’s residence, a friend of the Petitioner, and thus she did not 

think the Petitioner would have standing to challenge that search. Counsel recalled that 

on the day the Petitioner pleaded guilty, the trial court offered to relieve Counsel as his 

attorney, and he asked the trial court to let Counsel work out the case for him and resolve 

it that day.

At the conclusion of the hearing, the post-conviction court denied the petition, 

stating the following:
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From the post-conviction testimony, the Court gathers that, after the 

[P]etitioner arrived in prison, he learned that there were grounds for 

suppression of a laptop-containing backpack. He does not, however, claim 

either backpack or laptop or the residence where they were found as his. 

According to [C]ounsel, as a consequence, the [P]etitioner’s standing to 

challenge the admissibility of the evidence is questionable. Although he 

refers to the proof at the preliminary hearing, the record does not contain 

and he does not describe that proof, and the [S]tate contends that there was 

no such hearing.

After viewing the video with [C]ounsel, the [Petitioner] remarked 

that the perpetrator’s nose, eyes, ears, and hair cannot be seen, the color of 

his clothes can barely be seen, and he “he leaves the car without a backpack 

or laptop.” It appeared, however, that “something had been put in his 

clothing, down his pants . . . “

The [Petitioner], who had two prior convictions for burglary, know 

that he could go to trial and had done so before. . . . . Although he did not 

“have anything to do with the ranges,” he was aware of the possibility of a 

longer sentence on a conviction after trial.

Counsel mailed paper discovery to the [P]etitioner. She and her 

assistant viewed the video recording with him and explained that it looked 

like him, meaning not his face but his stance, gait, build, shape, and size.

Counsel does not recall any discussion about pre-trial motions, 

including motions to suppress, other than a motion to dismiss. . . . . The 

[P]etitioner was arrested on a warrant and found in possession of a stolen 

GPS, which was part of the other, not the laptop, case. The laptop was 

found in a residence and not taken from the [P]etitioner’s person. Counsel 

researched the value of the laptop on the internet.

Counsel thoroughly discussed with the [P]etitioner his options: 

going to trial, accepting the plea offer, or renegotiating. She reviewed the 

plea papers with him several times. Because the [P]etitioner had more than 

one conviction, she did not think that he should have been a Range I 

offender. She recommended that he accept the plea offer.

. . . .

The [P]etitioner argues that [C]ounsel did not file a motion to 
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suppress or dismiss, despite the premature seizure of evidence, and in one 

case, insufficient video evidence of the identity of the perpetrator. With 

respect to the motion to suppress it now appears that he faults [C]ounsel for 

not challenging the seizure of the laptop-containing backpack. The laptop, 

which he did not claim, was seized in the search of a backpack, which he 

did not claim, in a residence that was not his. . . . . Considering there is no 

evidence that the [P]etitioner had a reasonable expectation of privacy in the 

residence, the backpack or the laptop, the Court finds neither deficiency nor 

prejudice in [C]ounsel’s failure to file a motion to suppress the seizure of 

the laptop-containing backpack from the residence.

As for the motion to dismiss that a surveillance recording did not 

include a clear view of the perpetrator’s face does not mean that the 

recording did not provide other clues to the perpetrator’s identity. Nor does 

it mean that other, sufficient evidence of identity did not exist. In any 

event, it is not ground [sic] for dismissal. . . . Considering that there was 

no ground for a motion to dismiss, the Court finds neither deficiency nor 

prejudice in [C]ounsel’s failure to file a motion to dismiss.

The [P]etitioner alleges that his counsel, though she did file a motion 

to withdraw, did not succeed in withdrawing, despite a conflict of interest. 

There is no evidence of a conflict of interest on [C]ounsel’s part. In 

addition, exhibits 1 and 2, the transcripts of the hearing on the motion to 

withdraw and the pleas, reflect that, after consultation with [C]ounsel at the 

[P]etitioner’s request, instead of accepting the Court’s offer to relieve 

[C]ounsel and appoint substitute counsel, the [P]etitioner, satisfied with the 

plea agreement and [C]ounsel, proceeded with the entry of the pleas. The 

Court therefore finds neither deficiency nor prejudice in [C]ounsel’s 

performance in this respect.

The [P]etitioner claims that his pleas were involuntary or 

unintelligent. . . . . in essence . . . because he did not receive the effective 

assistance of counsel or there was an insufficient factual basis for one or 

both pleas. Almost all of the circumstances of the pleas, however, suggest 

that they were voluntary and intelligent.

The [P]etitioner is intelligent, literate, and assertive. He is familiar 

with criminal proceedings, having pled guilty and, by his own account, not 

guilty before. He had competent counsel and opportunity to confer with 

[C]ounsel about his alternatives. He was aware of the charges and evidence 

against him, including the weaknesses in the evidence against him, the 
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perpetrator’s unidentifiable face, the non-appearance of the backpack or 

laptop in the video recording, and the overvaluation of the laptop. He does 

not dispute that he understood his rights. He was under no apparent 

pressure to plead guilty but was eager to do so. Even if he did not 

understand sentence ranges, he did understand that the agreed sentences 

were more favorable than the possible sentences on conviction after a trial. 

He pled guilty to avoid a longer sentence after trial, which, with an 

apparently sufficient factual basis for the pleas and two prior burglary 

convictions, was more than an inconsequential possibility. . . . . The Court 

therefore finds that the pleas were voluntary and intelligent.

It is from the post-conviction court’s judgment that the Petitioner now appeals.

II. Analysis

The Petitioner contends on appeal that the post-conviction court erred when it 

denied his petition because he received the ineffective assistance of counsel when

Counsel failed to file a motion to suppress and failed to advise the Petitioner that he had 

an expectation of privacy in the backpack and its contents that was found and searched in 

his friend’s residence. The State responds that Counsel’s representation of the Petitioner 

was not ineffective when she did not file a motion to suppress the evidence seized from a 

search of the backpack. The State asserts that the Petitioner disclaimed interest and 

ownership in the backpack. This, the State claims, was sufficient evidence that the 

Petitioner abandoned any reasonable expectation of privacy in the backpack and thus, he 

cannot show that the proceedings would have concluded differently had Counsel filed a 

motion to suppress the backpack evidence. We agree with the State.

In order to obtain post-conviction relief, a petitioner must show that his or her 

conviction or sentence is void or voidable because of the abridgment of a constitutional 

right. T.C.A. § 40-30-103 (2014). The petitioner bears the burden of proving factual 

allegations in the petition for post-conviction relief by clear and convincing evidence. 

T.C.A. § 40-30-110(f) (2014). The post-conviction court’s findings of fact are conclusive 

on appeal unless the evidence preponderates against it. Fields v. State, 40 S.W.3d 450, 

456-57 (Tenn. 2001). Upon review, this Court will not re-weigh or re-evaluate the 

evidence below; all questions concerning the credibility of witnesses, the weight and 

value to be given their testimony and the factual issues raised by the evidence are to be 

resolved by the trial judge, not the appellate courts. Momon v. State, 18 S.W.3d 152, 156 

(Tenn. 1999); Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). A post-conviction 

court’s conclusions of law, however, are subject to a purely de novo review by this Court, 

with no presumption of correctness. Id. at 457. 
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The right of a criminally accused to representation is guaranteed by both the Sixth 

Amendment to the United States Constitution and article I, section 9, of the Tennessee 

Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 

S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The 

following two-prong test directs a court’s evaluation of a claim for ineffectiveness:

First, the [petitioner] must show that counsel’s performance was deficient. 

This requires showing that counsel made errors so serious that counsel was 

not functioning as the “counsel” guaranteed the [petitioner] by the Sixth 

Amendment. Second, the [petitioner] must show that the deficient 

performance prejudiced the defense. This requires showing that counsel’s 

errors were so serious as to deprive the [petitioner] of a fair trial, a trial 

whose result is reliable. Unless a [petitioner] makes both showings, it 

cannot be said that the conviction or death sentence resulted from a 

breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Melson, 772 

S.W.2d 417, 419 (Tenn. 1989).

In reviewing a claim of ineffective assistance of counsel, this Court must 

determine whether the advice given or services rendered by the attorney are within the 

range of competence demanded of attorneys in 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 standard of reasonableness.” House 

v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 

(Tenn. 1996)). When evaluating an ineffective assistance of counsel claim, the reviewing 

court should judge the attorney’s performance within 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 should 

avoid the “distorting effects of hindsight” and “judge the reasonableness of counsel’s 

challenged conduct on the facts of the particular case, viewed as of the time of counsel’s 

conduct.” Strickland, 466 U.S. at 689-90. In doing so, the reviewing court must be 

highly deferential and “should indulge a strong presumption that counsel’s conduct falls 

within the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462. 

Finally, we note that a defendant in a criminal case is not entitled to perfect 

representation, only constitutionally adequate representation. Denton v. State, 945 

S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of 

ineffective assistance of counsel, ‘we address not what is prudent or appropriate, but only 

what is constitutionally compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting 
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United States v. Cronic, 466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed 

to have been ineffective merely because a different procedure or strategy might have 

produced a different result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. 

App. 1980). “The fact that a particular strategy or tactic failed or hurt the defense, does 

not, standing alone, establish unreasonable representation. However, deference to 

matters of strategy and tactical choices applies only if the choices are informed ones 

based upon adequate preparation.” House, 44 S.W.3d at 515 (quoting Goad, 938 S.W.2d 

at 369).

If the petitioner shows that counsel’s representation fell below a reasonable 

standard, then the petitioner must satisfy the prejudice prong of the Strickland test by

demonstrating there is a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 

694; Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). This reasonable probability 

must be “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 

694; Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994).

On the matter of the failure of Counsel to file a motion to suppress at trial, the 

post-conviction court found that, because the Petitioner claimed that the backpack was 

not his and that it was inside a residence he did not own or occupy, the Petitioner had no 

reasonable expectation of privacy in the residence, the backpack inside, or the contents of 

the backpack. Thus, the post-conviction court found that Counsel was not deficient and 

that the Petitioner suffered no prejudice when Counsel did not file a motion to suppress 

the evidence seized from the backpack.

We conclude that the evidence does not preponderate against the trial court’s 

findings. The evidence presented was that the laptop was found in someone else’s 

residence, a friend of the Petitioner, and thus Counsel felt that the Petitioner lacked 

standing to challenge that search. The Petitioner also testified that he left the backpack 

inside a friend’s residence and when asked by the police about the backpack, he 

disclaimed ownership. “[W]hen a person disclaims any interest in the premises or 

possessions searched, or in the article seized, he can not question the legality of the 

search.” Miller v. State, 520 S.W.2d 729, 734 (Tenn. 1975) (quoting Neal v. State, 334 

S.W.2d 731 (Tenn. 1960). As such, Counsel was not deficient for failing to file a motion 

to suppress under these circumstances. Accordingly, we conclude that the Petitioner is 

not entitled to relief.

III. Conclusion

In accordance with the aforementioned reasoning and authorities, we affirm the 

post-conviction court’s judgment. 
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________________________________

ROBERT W. WEDEMEYER, JUDGE