### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON Assigned on Briefs February 9, 2016 at Nashville

ROSCOE GRAHAM v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 11

- 05371 Chris Craft, Judge

No. W2015

- 01482

- CCA

- R3

- PC

- Filed March 2, 2016



### _____________________________

In August 2013, Roscoe Graham (“the Petitioner”) was convicted of aggravated sexual battery and sentence d to ten years‟ incarceration. Thereafter, he filed a peti tion for post

conviction relief, which w as denied after a hearing . On appeal , the Petitioner contends that trial counsel rendered ineffective assistance by : (1) failing to assert a viable defense; (2) coercing the Petitioner to waive filing of a motion for new trial and direct appeal; and (3) o perating under an actual conflict of interest. Upon review , we affirm the judgment of the post

- conviction court.

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

R OBERT L. H OLLOWAY

, J R

., J., delivered the opinion of the Court, in which J AMES
C URWOOD W ITT

, J R

., and A LAN E. G LENN

, JJ.

, joined.

Ryan C. Smith, Memphis

, Tennessee, for the a ppellant

, Roscoe Graham.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle

, Assistant Attorney General; Amy P. Weirich , District Att orney General; and Melanie Cox

, Assistant Dist rict Attorney General, for the a ppellee, State of Tennessee.- 2

- OPINION

I. Factual and Procedural Background

Trial

T he Shelby County Grand Jury indicte d the Petitioner for one count of aggravated sexual battery, a Class B felony , in August 2011

. The facts at trial, as set out by the post

conviction court, were as follows: 1

[O]n July 3rd, 2010, officers received a call

- out to Le Bonheur[]

Childre n‟s Hospital. There they spoke to the victim, a twelve year old

female.

She stated she was at her father‟s home . . . and her two half

- brothers were out of town with their mother. The victim stated that she and [the Petitioner] went to [an] On The Bor der restaurant to eat where he consumed

alcohol.

Once they were home [the Petitioner] asked the victim, his daughter, if she trusted him and she said yes. The victim said [the Petitioner] then asked her if she‟d ever had a massage. The victim said [the Petitioner] got some oil then told her to remove her clothing. He put an eye cover over her eyes and again asked if she trusted him.

The [Petitioner] was fully clothed before the lights were turned off. The [Petitioner] . . . then began touching the victim stating do you want me to stop. Telling her that she was wet, and kissing her, touching her . . . teeth with his tongue. The [Petitioner] touched the victim with his fingers inside her underwear on top of her vagina but did not penetrate her v agina. The victim stated the [Petitioner] was straddling her. The victim told the [Petitioner] that she wanted him to stop. He removed the eye cover and it was at that time the victim saw that the [Petitioner] had undressed.

The victim was then able t o get away from [the Petitioner]. She called and told her mother that she wanted to go home. And her mother came to get her.

1 Although the post

- conviction court referenced the trial transcript in its order denying post

conviction relief, a copy of the transcript was not part of the record in this appeal.- 3

-

Following a trial, a jury found the Petitioner guilty as charged. At a subsequent sentencing hearing

, the trial court sentence d the Petitioner to ten years in the Department

of Correction. That same day, the Petitioner waived his right to file a motion for new

tria l and to appeal his conviction. Consequently, the Petitioner did not file a direct appeal

of his conviction and sen tence to this court

.

Post

- Conviction Proceedings

On June 5, 2014, the Petitioner filed a timely pro se petition for post

- conviction

relief. Following the appointment of counsel, the Petit ioner filed an amended petition.

At a subsequent hearing, the Petitioner testified that he retained trial counsel following his indictment. The Petitioner explained that trial counsel had previously acted as corporate counsel for the Petitioner‟s private security business , EP Security, and that he

had known trial co unsel for ten years

. T he Petitioner stated that he met with trial counsel approximately three to four time s at counsel‟s office and that those meetings lasted only

ten to fifteen minutes

. The Petitioner stated that he took his business partner, Mitchell Copeland, to his meetings with trial counsel because Mr. Copeland was his best friend. He stated that Mr. Copeland sat in on some of the meetings with counsel but that, at other times, he s poke to trial counsel alone. The Petitioner recalled that trial counsel reviewed discovery with him. However, a ccording to the Petitioner, trial counsel never discuss ed trial strategy during their meetings. The Petitioner recalled trial counsel ‟s saying that the State did not have any physical evidence against him

, and counsel assured the Petitioner that “this would go away or at worst [the Pet itioner] would get probation.” Regarding the allegations against him, the Petitioner told trial counsel that it “never happened” and that the victim was lying. A t trial counsel‟s urging

, the Petitioner took a lie detector test, the

results of which t he Petitioner claimed were “inconclusive.” Additionally, t rial counsel

had the Petitioner undergo a mental health e valuation w ith a psychiatrist. However, the
Petitioner‟s mental health issues were limited to his claustroph obia, as well as anxiety arising from his criminal charges.

According to the Petit ioner, trial counsel conveyed a settlement offer from the

Sta te, which would have resulted in the Petitioner‟s being sentenced to eight years at thirty percent. The Petitioner , however, rejected the State‟s offer. The Petitioner testified

that t r ial counsel told him that the range of punishment w as eight to twelve years at th irty
percent but that he did not learn until “right before” trial that the offense of aggravated sexual battery carried a one hundred percent service rate.

The Petitioner testified that he requested that tr ial counsel interview two potential

defense witnesses

— t he Petitioner‟s ex

- wife and son

— but that t rial counsel failed to

interview these witnesses

. Regarding the proposed testimony from the Petitioner‟s ex

wife and son, the Petitioner agreed that it would have been limited to hear say statements- 4

-

and that n either witness was present the night the incident took pla ce. The Petitioner

stated that h e discussed the possibility of testifying at trial with counsel. H owever, b ased upon the proof as presented , counsel advised that the Petit ioner not testify , and the defense presented no proof at trial. T he Petitioner stated that trial counsel failed to assert a viable defense strategy, commenting that “there was no strategy.”

The Petitioner recalled that, a t his se ntencing hearing, he read a letter of apology

to the victim. The Petitioner stated that t rial counse l told him that it would “save two years off [his] sentence” if he wrote a letter of apology

. The Petitioner claimed that he

a r gued with trial counsel about writing the letter and that trial counsel angrily left the room several times when discussing the letter

. T rial counsel then gave him a typed letter

and told the Petitioner to copy the letter in his handwriting. In that letter, which was read by the Petitioner at sentenci ng and introduced as an exhibit, the Petitioner stated:

Without going into details, a lot of things happened when I was growing up that I could not face when I became a man. The pain I went through I tried to ignore it and hide it. I didn‟t know how or who to talk to about this stuff in my head. I ended up hurting a lot of people that I love including my own child, and for that I was wrong. And for that I just want to say I‟m so sorry for putting you through all of this.

The Petitioner maintained th at he never admitted his guilt to trial counsel and that the
words in the letter were trial counsel‟s

.

Additionally, the Petitioner stated that trial counsel coerced him into waiving his motion for new trial and right to appeal at the sentencing hearing . He said that trial

counsel a dvised him to sign an order waiving the motion for new trial and right to appeal in exchange for a ten

- year sentence. The Petitioner recalled that, when h e met with trial counsel before sentencing, counsel advised that the P etitioner would get the maximum sentence of twelve years . Counsel suggested that, if he wrote a letter of apology, t he

Petitioner could get two years taken off of his sentence. The Petitioner acknowledged
that trial counsel‟s advice was b ased upon what t rial counsel knew of the trial judge and

his sentencing practices. The Petitioner recalled that he wrote two earlier versions of the apology letter but that trial counsel said “it wasn‟t enough.” The Petitioner claimed that he and trial counsel argued ab out the letter and that trial counsel walked out of their meeting. When trial counsel returned, he had a typed letter, which trial counsel encouraged the Petitioner to copy. The Petitioner testified that he felt coerced to write

and read the letter at s entencing because trial counsel said he would otherwise receive the

maximum twelve

- year sentence. The Petitioner acknowledged that, w ith the letter, trial

counsel was able to negotiate with the State for a ten

- year sent ence. As part of the

settlement wit h the State, the Petitioner also agreed not to file a motion for new trial and- 5

-

to waive his right to an appeal. The Petitioner testified that the trial judge did not coerce him into entering into the agreement, and the Petitioner acknowledged that he made the decision to accept the ten

- year sentence and give up his right to appeal as an act of his

own free will.

Finally, the Petitioner assert ed that trial counsel had a conflict of interest when representing the Petitioner . He explained that he learned after trial that Mr. Copeland, who owned fifty percent of the EP Security, had a close personal relationship with trial counsel that extended beyond their business relationship. The Petitioner suggested that both Mr. Copeland and trial counsel stood to be nefit financially if the Petitioner was convicted and the business fell entirely into Mr. Copeland‟s hands. The Petitioner testified that Mr. Copeland ended up with “the whole business” and that Mr. Copeland closed EP Security and started a new company wh ich took several contracts from EP Security. The Petitioner stated that Mr. Copeland benefitted from his incarceration and that he believed trial counsel also benefitted financially.

Mitchell Copeland testified that he had been good friends with the P etitioner for
twenty years . Eventually, Mr. Copeland and the Petitioner started EP Security together, and they hired trial counsel to represent the company‟s legal interests. He stated that t rial counsel had no financial interest in EP security but that trial counsel was paid from company funds to represent the Petitioner in the criminal case

. Mr. Copeland recall ed that, after the Petitioner‟s arrest, he made the Petitioner‟s $10,000 bond, putting up his

house as collateral. He stated that he did not sit in on the Petitioner‟s meetings with trial counsel, although he did overhear trial counsel tell the Petitioner that the Petitioner would likely receive probation. Mr. Copeland acknowledged that he w ent to trial couns el‟s

home for a Super Bowl party d uring the pendency of the Petitioner‟s case and that, after the Petitioner‟s sentencing, Mr. Copeland became the sole owner of EP Security. He explained that, w hile the Petitio ner was in jail, he assured the Petitioner that he would p ut the Petitioner‟s share of the company into a bank account and hold it for him. However, once Mr. Copeland paid employees‟ salaries, there was no money left over. Mr. Copeland acknowledged that , since the conclusion of the Petitioner‟s case, he had sta rted a new security business and that t rial counsel represented him in that business . He stated

that he had paid trial counsel $1,000 for work counsel had performed for his new

business.

On cross

- examina tion, Mr. Copeland stated that he accompanied the Petitioner to trial counsel‟s office “over twenty times” during the period between the Petitioner‟s

indictment and trial. He explained that EP Security was dissolved as a corporation after
the Petitioner‟s conviction and incarceration. He stated that tr ial counsel had not been an owner in EP Security and that trial counsel did not have an ownership interest in his new

business.- 6

-

Trial counsel testified that he had been practicing law for twelve years at the time he represented the Petitioner on his cri minal charges and that he had prior experience handling trials, sentencing hearings, and appeals. According to trial counsel, he interviewed the Petitioner‟s son at the Petitioner‟s request. However, based upon his conversation with the Petitioner‟s son, trial counsel decided not to call him to testify for

the defense. Trial counsel explained that th e Petitioner‟s son‟s theory was that the victim made up the story about sexual abuse because she was upset that the Petitioner did not buy her an i Pad. Trial counsel told the Petitioner that this explanation for the sexual abuse allegations was “ludicrous ” and did not make sense, and trial counsel noted that both the Petitioner and the victim‟s mother could easily afford to buy the victim that item.

Trial counsel denied that the Petitioner asked him to interview the Petitioner‟s ex

- wife.

Trial counsel testified that the State made a settlement offer, in which the Petitioner would plead guilty in exchange for a ten

- year sentence. Trial counsel, however, tried to negotiate for an offer of eight years . Trial counsel denied that he provided assurances to the Petitioner that the Petitioner would receive a sentence of probation. Trial counsel testified that he made multiple attempts to discuss a potential trial strategy with the Petitioner. Counsel recalled that the Petitioner d id not have a defense other than “it didn‟t happen.” Trial counsel tried to develop additional defense strategies with the Petitioner and attempted to force the Petitioner to “ face what we were looking at.” As part of his effort, trial counsel s uggested that the Petitioner take a l ie

detector test. However, the Petitioner failed the lie detector test. Trial counsel then h ad the Petitioner submit to a mental evaluation at UT Medical Group

. Trial counsel wanted to demonstrate to the State that the Petitioner sought treatment and w as “addressing the problem.” However, the State rejected these attempts and informed trial counsel tha t it

intended to have the Petitioner se rve a sentence of incarceration. Trial counsel testified that, based upon the circumstances, he argued to the jur y for a conviction on a less er

included offense at trial. Trial counsel acknowledged that he encouraged the Petitioner to write a letter of apology to the victim before the sentencing hearing. He further acknowledged that he eventually typed out a letter for the Petitioner to copy. He explained that the first draft was “creepy” in his opinion because it ended with “when I‟m out we can continue our relationship” and that the Petitioner‟s second attempt was too “self

- serving .” Regarding his relationship with Mr. Copeland, trial counsel testified that, before the Petitioner‟s arrest, counsel had represented the Petitioner and Mr. Copeland in their security company business. Following the Petitioner‟s incarceration, trial counsel represented Mr. Copeland‟s new business in a labor law issue.

On cross

- examination, trial counsel testified that he was retained to represent the

Petitioner and that the charge was more serious than trial counsel initially anticipated. In

the course o f his representation, trial counsel m et with the Petitioner about twenty

- five- 7

-

times at counsel‟s office and that Mr. Copeland often came with the Petitioner

. Trial counsel recalled that he had difficulty in getting the Petitioner to have ope n discussions about the victim‟s allegations

. The Petitioner maintained that the allegations were “some type of conspiracy” and that “he was the victim [in] some way.” The Petitioner also rejected the State‟s ten

- year settlement offer. Consequently, trial counsel arr anged for the

Petitioner to take a lie detector test. Counsel testified that, i f the Petitio ner had passed the

tes t, he wanted to use that in further negotiations with the State. Additionally, trial

counsel h oped that if t he Petitioner failed the lie det ector test, it wo uld lead the Petitioner to communicate more openly with trial counsel so that trial counsel could better assist in

a defense. Unfortunately, when the Petitioner failed the test, i t did not facilitate

communication with trial counsel

. Tri al counsel said that t he Petitioner had a prior felony conviction for attempted voluntary manslaughter and that the State had provided notice of its intent to use this prior conviction against the Petitioner. Additionally, trial

counsel recalled that the court conducted a Rule 404(b) hearing prior to trial, in which the
Petitioner‟s ex

- wife‟s daughter testified about prior bad conduct involving the Petitioner.

Following the jury‟s guilty verdict

, trial counsel told the Petitioner that they might

be able to convince the court t o accept a negotiated sentence for the same ten

- year offer that he had prior to trial. Trial counsel further told the Petitioner that, if the Petitioner wrote a letter of apology to the victim, it might convince the court to accept the deal. Trial counsel acknowledged that he wrote the letter the Petitioner read at sentencing and stated that the Petitioner adopted the letter and rewrote it in his own handwriting. Counsel recalled that the trial court agreed to the ten

- year sentenc e after the Petitioner

addressed the court and read the letter. He denied forcing or coercing the P etitioner to write the letter, and he denied that he “ storm ed out ” of the room when they were discussing the possibility of the Petitioner ‟s writing a lette r. Trial counsel recalled that,

as pa rt of the agreement with the State , the Petitioner waived his motion for new trial and right to an appeal in exchange for the ten

- year sentence. Counsel stated that he d iscussed the waiver fully with the Petitioner a nd that the trial court thoroughly questioned the Petitioner about the waiver before accepting the agreement. Trial counsel testified that the Petitioner agreed to the terms of the agreement of his own free will. Trial counsel maintained that his represe ntation of both Mr. Copeland and the Petitioner

, as general

counsel of their business

, did not impact his representation of the Pet itioner in the criminal case. Further, he denied that he had received any “ monetary windfall ” since the
Petitioner‟s convict ion.

Following the hearing, the post

- conviction court denied relief in a written order

filed July 6, 2015. This timely appeal followed.- 8

- II. Analysis

On appeal, the Petitioner contends that the trial court erred in denying his claim

for post

- conviction relief based upon ineffective assistance of counsel. Specifically, the Petitioner asserts that trial counsel rendered ineffective assistance by: (1) failing to assert a viable defense; (2) coercing the Petitioner to waive filing of a motio n for new trial and direct appeal; and (3) operating under an actual conflict of interest. The State responds

that the Petitioner has failed to establish that trial counsel‟ s performance was deficient. We agree with the State.

In order to prevail on a p etition for post

- conviction relief, a petitioner must prove all factual allegations by clear and convincing evidence. Jaco v. State , 120 S.W.3d 828, 830 (Tenn. 2003). Post

- conviction relief cases often present mixed questions of law and

fact. See Fields v. State , 40 S.W.3d 450, 458 (Tenn. 2001). Appellate courts are bou nd by the post

- conviction court‟ s factual findings unless the evidence preponderates against such findings. Kendrick v. State , 454 S.W.3d 450, 457 (Tenn. 2015). When revi ewing the post

- conviction court‟ s factual findings, this court does not reweigh the evidence or substitute its own inferences for those drawn by the post

- conviction court. Id. ; Fields , 40 S.W.3d at 456 (citing Henley v. State , 960 S.W.2d 572, 578 (Tenn. 1997)). Additio nally, “questions concerning the credibility of the witnesses, the weight and value to be given their testimony, and the factual issues raised by the evidence are to be resolved by the [post

- conviction court].” Fields , 40 S.W.3d at 456 (citing Henley , 960 S.W.2d at 579);

see also Kendrick , 454 S.W.3d at 457. The trial court‟ s conclusions of law and application of the law to factual findings are reviewed de novo with no presumption of

correctness. Kendrick , 454 S.W.3d at 457.

The right to effective assistance of counsel is safe guarded by the Constitutions of

both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const. art. I, § 9. In order to receive post

- conviction relief for ineffective assistance of counsel, a petitione r must prov e two factors: (1) that counsel‟ s performance was deficient; and (2) that the deficiency prejudiced the defense. Strickland v. Washington , 466 U.S. 668, 687 (1984); see State v. Taylor , 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that the same standard for ineffective assistance of counsel applies in both federal and Tennessee cases). Both factors must be proven in order for the court to grant post

conviction relief. Strickland , 466 U.S. at 687; Henley , 960 S.W.2d at 580; Goad v. Stat e
, 938 S.W.2d 363, 370 (Tenn. 1996). Accordingly, if we determine that either factor is not satisfied, there is no need to consider the other factor. Finch v. State , 226 S.W.3d 307, 316 (Tenn. 2007) (citing Carpenter v. State , 126 S.W.3d 879, 886 (Tenn. 2004)). Additionally, review of counsel‟ s performance “requires that every effort be made to eliminate the distorting effects of hindsight, to reconstru ct the circumstances of counsel‟ s challenged conduct, and to ev aluate the conduct from counsel‟ s perspe ctive at the time.”- 9

-

Strickland , 466 U.S. at 689; see also Henley , 960 S.W.2d at 579. We will not second

guess a reasonable trial strategy, and we will not grant relief based on a sound, yet ultimately unsuccessful, tactical decision. Granderson v. State , 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).

As to the first prong of the Strickland analysis, “counsel‟ s performance is effective if the advice given or the services rendered are within the range of competence demanded of attorneys in criminal cases.” Henley , 960 S.W.2d at 579 (citing Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975)); see also Goad , 938 S.W.2d at 369. In order to prove that counsel was deficient, the petitioner must demonstrate “that counsel‟ s acts or omissions

were so serious as to f

all below an objective standard of reasonableness under prevailing professional norms.” Goad , 938 S.W.2d at 369 (citing Strickland , 466 U.S. at 688); see also Baxter , 523 S.W.2d at 936.

Even if counsel‟ s performance is deficient, the deficiency must have resulted in prejudice to the defense. Goad , 938 S.W.2d at 370. Therefore, under the second prong

of the Strickland analysis, the petitioner “must show that there is a reasonable pr obability that, but for counsel‟ s unprofessional errors, the result of th e proceeding would have been

different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id. (quoting Strickland , 466 U.S. at 694) (internal quotation marks omitted).

In cases involving allegations of a confl ict of interest, t h is court will presume prejudice “only if the defendant demonstrates that counsel „actively re presented conflicting interests‟ and that an „actual conflict of interes t adversely affected his lawyer‟ s performance. ‟ ” Strickland , 466 U.S. a t 692 (quoting Cuyler v. Sullivan , 446

U.S. 335, 350 (1980 )). However, if a petitioner does not raise an objection at trial he
“must demonstrate that an actual conflict of interes t adversely affected his lawyer‟ s performance.” Cuyler , 446 U.S. at 348. U ntil a petitioner meets this burden, “he has not established the constitutional predicate for his claim of ineffective assistance.” Id. at 350.

A. Failed to Assert a Viable Defense

The Petitioner argues that trial counsel rendered ineffective assistance by failing to

assert a viable defense. The Petitioner asserts that he and trial counsel met only briefly three to four times before trial, that counsel never discussed potential trial strategy with him, and that counsel offered no proof on his behalf at trial.- 10

-

The post

- conviction court found this allegation to be without merit, explaining :

Both the [P]etitioner and [trial counsel] testified that [trial counsel] gave the [P]etitioner a lie detector test by an ex

- FBI agent, which the [P]etitioner fai led and then left on a trip to Las Vegas. [Trial counsel] stated that the [P]etitioner asked him to interview his son, but when he did, he found his story unbelievable (“ludicrous”). The son‟s theory was that the victim was framing the [P]etitioner becau se he would not get her an iPad. [The Petitioner‟s ex

- wife‟s] daughter was an unindicted victim of the [P]etitioner, and her testimony would very likely have opened up the admissibility of that 404(b) evidence for impeachment purposes. [Trial counsel] ma de appointments for the [P]etitioner with a psychiatrist, hoping he could use his mental state (to convince the State to offer a lesser included guilty plea) but stopped the sessions after the first because there was nothing they could use. He met with th e [P]etitioner over 20 times. The [P]etitioner admitted that they went over all of the discovery and met prior to trial to go over “who was who” on witnesses. The victim at trial was very intelligent, articulate and proved extremely credible. [Trial

cou nsel] testified that his only theory was to convince the jury that it was something less than aggravated sexual battery. No other viable defense has been shown at the hearing on this petition.

In this case, the Petitioner has not established how trial counsel‟s defense strategy was deficient in light of the facts as presented to trial counsel at the time nor has the Petitioner suggested what other strategy trial counsel c ould have employed to reach a more favorable result. As previously noted, w e will not second

- guess a reasonable , yet ultimately unsuccessful, trial strategy. See Granderson , 197 S.W.3d at 790. Accordingly, the Petitioner has failed to prove deficient performance on the part of trial

counsel or resulting prejudice, and he is not entit led to relief on this issue.

As part of his allegation that trial counsel failed to assert a viable defense, t he Petitioner also contends that trial counsel “threw [him] under the bus” during closing argument when trial counsel conceded that the allege d conduct occurred. However, the record does not contain a transcript of trial counsel‟s closing argument, and the brief quote cited by the Petitioner in his brief is clearly incomplete and the meaning of the quote is unclear without further context. By failing to provide an adequate record for

review , the Petitioner has waived our consideration of this portion of his claim

. See

Tenn. R. App. P. 24(b) (stating that th e appellant has a duty to prepare a record that conveys “a fair, accurate and complete a ccount of what transpired with respect to those

issu es that are the bases of appeal ” ) ; State v. Roberts , 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988) (concluding that “[w]here . . . the record is incomplete, and does not contain a- 11

-

transcript of the proceedi ngs relevant to an issue presented for review, or portions of the

record u pon which a party relies, this [c] ourt is precl uded from considering the issue[] ” ). Moreover, “[i] n the absence of an adequate record on appeal, we mu st presume that the

trial court ‟ s ruling was supported by the evidence.” State v. Bibbs , 806 S.W.2d 786, 790 (Tenn. Crim. App.1991).

B. Coerced Waiver of Motion for New Trial and Appeal

The Petitioner contends that trial counsel rendered ineffective assistance when he

coerced the Petitioner into waiving his motion for ne w trial and appeal. As proof of trial counsel‟s coercive behavior, the Petitioner asserts that trial counsel argued with him

about the letter of apology, rejected the Petitioner‟s first two dr afts of that letter, and

forced the Petitioner to a dmit guilt in order to “save two [] years off his sentence.”

Relative to this issue , the post

- conviction court found :

No credible proof of coercion was presented at the he aring on this petition. The [P]etitioner testified that [trial counsel] advised him to write a letter of apology in exchange for a 10 year sentence, and he followed that advice. He wrote his own letter at first . . . , but [trial counsel] stated that it was not good enough, and wrote one for him. [Trial counsel] stated that he rejected the first letter because it ended with “when I‟m out we can continue our relationship” . . . , which was too “creepy” in his opinion. This court voir dired the [P]etition er on his waiver after he read the letter from the witness stand . . . and finds there is no question that the [Petitioner] understood he was waiving his right to appeal, and that the waiver was freely and voluntarily made. This allegation fails for lack of any credible proof.

The record reflects that before the Petitioner‟s sentencing hearing trial counsel advised the Petitioner that he could reduce his likely sentence by two years if he read a letter of apology and waived filing a motion for new tria l and an appeal. Trial counsel‟s advice to the Petitioner was based upon what counsel knew of the trial judge and his sentencing practices. Although trial counsel provided the Petitioner with a typed copy of the apology letter, the Petitioner adopted tha t letter as his own by writing it in his own handwriting and reading it at his sentencing hearing. Trial counsel denied forcing the Petitioner to write the letter, and he denied “storming out” of the room during discussions

with the Petitioner about the l etter. Tr ia l counsel discussed the waiver of the motion for new trial and right to appeal fully with the Petitioner, and the Petitioner acknowledged that he made the decision to accept the ten

- year sentence and give up his right to appeal

as an act of his own free will. Further, the post

- conviction court found that it questioned- 12

-

the Petitioner regarding the agreement and that there was “no question” that the Petitioner understood he was waiving his right to appeal and that the waiver was freely and

volunt arily made.

The evidence does not preponderate ag ainst the post

- conviction court‟s

determination that trial counsel did not coerce the Petitioner into waiving his motion for new trial and appeal

. The Petitioner failed to show deficient performance a nd any prejudice from the alleged deficiency, and he is not entitled to relief on this basis.

C. Conflict of Interest

Finally, the Petitioner asserts that trial counsel had a conflict of interest due to counsel‟s “substantial relationship” with Mr. Copel and , as well as trial counsel‟s business relationship with the Petitioner

. The Petitioner argues that prejudice must be presumed in this case because trial counsel “was opportunistic and potentially benefitted financially”
from the Petitioner‟s conviction and the subsequent dissolution of his partnership with Mr. Copeland.

In rejecting this claim, the post

- conviction court found:

The [P]etitioner was partners in a security business with [Mr.] Copeland, who testified as a witness at the hearing. [Trial counsel] was also the business‟s attorney. The [P]etitioner alleges a conspiracy theory wherein he surmises that [trial counsel] and Mr. Copeland conspired to convict him so that Mr. Copeland would get all of the [P]etitioner‟s business and [trial counsel] would somehow benefit. However, he also testified that Mr. Copeland was his best friend since childhood and he was

close r to him than a brother. Mr. Copeland‟s testimony at the hearing did not support this conspiracy theory. He testified that h e made the [P]etitioner‟s $10,000 bond, putting up his house as collateral, went with the [P]etitioner to [trial counsel‟s] office over 20 times, waiting in the lobby while they discussed the case, dissolved their security corporation after the conviction, and never made [trial counsel] a partner. After the conviction, he only paid [trial counsel] $1,000 to handle a labor dispute. This allegation fails for lack of any credible proof.

The post

- conviction court also found “ no conflict in this matter that would violate the rules of professional conduct ” and concluded that the Petitioner had presented “[n] o evidence whatsoever

. . . on which any conflict can be based.”- 13

-

Our review of the record shows that, although trial counsel represented the

Petitioner ‟s and Mr. Copeland‟s business interests in EP Security for ten years, counsel had no ownership interest in EP Security. M oreover, trial counsel received no money from the dissolution of the company because there was no money left over after Mr. Copeland paid the employees of EP Security. Although Mr. Copeland later started a new business, he testified that trial counsel had no ownership interest in this new business and

that trial counsel had represented the new business in only a labor dispute , for whic h

counsel was paid $1,000. The Petitioner failed to explain how trial counsel‟s representation of EP Security limi ted counsel‟s ability to represent the Petitioner in the criminal case. Moreover, there was no proof that trial counsel stood to benefit per sonally

if the Petitioner was convicted or that trial counsel conspired with Mr. Copeland to take EP Security from the Petitioner

. The Petitioner has failed to establish that an actual

conflict of interes t adversely affected trial counsel‟s performance

. See Cuyler , 446 U.S.

at 348. Accordingly, he is not entitled to relief on this claim.

III. Conclusion

For the aforementioned reasons, the judgment of the post

- conviction court is

affirmed.

_________________________________ ROBERT L. HOLLOWAY, JR., JUDG E