IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs December 1, 2009

LAMARIO SUMNER a/k/a LAMARIO FLEMING v.

STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. 03-07118 Paula Skahan, Judge

No. W2009-00453-CCA-R3-PC - Filed November 10, 2010

Petitioner, Larmio Sumner a/k/a Lamario Flemming, appeals the post-conviction court’s

dismissal of his petition for post-conviction relief in which he alleged the ineffective

assistance of trial counsel. Specifically, Petitioner contends that trial counsel’s assistance

was ineffective because he failed to (1) request a jury instruction on aggravated assault as

a lesser included offense of each count charged in the indictment; and (2) appeal the trial

court’s imposition of consecutive sentencing. After a thorough 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

THOMAS T. WOODALL, J., delivered the opinion of the Court, in which JOHN EVERETT

WILLIAMS and J.C. MCLIN, JJ., joined.

Lance R. Chism, Memphis, Tennessee, for the appellant, Lamario Sumner.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant

Attorney General; William L. Gibbons, District Attorney General; and Byron B. Winsett,

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

OPINION

I. Background

Following a jury trial, Petitioner was convicted of two counts of aggravated robbery. 

The trial court sentenced Petitioner as a Range III, persistent offender, to twenty years for

each conviction. The trial court ordered Petitioner to serve his sentences consecutively for

an effective sentence of forty years. 
The facts supporting Petitioner’s convictions were summarized by this Court on

appeal as follows:

On April 26, 2003, the two victims, Maria Lawson and Angel Silva,

met at Memphis de Noche, a local Memphis club. After a brief conversation,

the two went outside to Lawson’s Jeep Cherokee and drove behind the club

in order to “have sex.” Lawson admitted to prostituting at the club. Lawson

was seated in the driver’s seat of the vehicle, and Silva was standing outside

the passenger door when a car with two black males pulled up behind

Lawson’s vehicle. The passenger of the vehicle, later identified as the

Appellant, exited the car and brandishing a pistol, approached Silva and

demanded money. Silva removed his wallet from his pocket and threw it to

the ground. As the Appellant bent to retrieve the wallet, Silva fled and hid

between two parked cars. The Appellant then approached Lawson’s side of

the vehicle, demanding that she surrender her keys to the vehicle. Lawson

handed the Appellant the keys, but as he attempted to enter the vehicle, she

“hollered real loud.” At this point, rescue-minded patrons of the bar emerged. 

The Appellant fled the Jeep Cherokee, taking Lawson’s purse with him, and

he began firing his gun at the oncoming patrons. One or more of the patrons,

who were also armed, returned fire. After the gunfire stopped, Silva emerged

from his hiding spot and proceeded back around the building. The Appellant,

who was still present at this time, shot Silva in the chest. The Appellant then

fled the scene on foot. The driver of the vehicle, who had remained in the

vehicle during the commission of the offenses, drove away.

A club security guard escorted Lawson as she moved her vehicle to a

more secure location. During the process of moving her vehicle, Lawson

found the Appellant’s driver license in the floorboard. When the police

arrived on the scene, Lawson and the security guard returned to the scene, and

Lawson gave the driver license to an officer, identifying the man as the

perpetrator.

Silva was transported to a nearby hospital where he underwent surgery

for a gunshot wound to the chest. After his discharge, Silva was interviewed

by the police through an interpreter, and he identified the Appellant as his

assailant from a photo line-up.

State v. Lamario Sumner, No. W2005-00122-CCA-R3-CD, 2006 WL 44377, at *1 (Tenn.

Crim. App., at Jackson, Jan. 6, 2006), perm. to appeal denied (Tenn. May 30, 2006).

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II. Post-Conviction Hearing

Petitioner testified that he retained trial counsel in April 2003. Petitioner said that he

met with trial counsel approximately seven or eight times before trial, and trial counsel

reviewed the facts of the case with him. Petitioner told trial counsel that he, Fred Richards

and Michael Benton were riding down Lamar Avenue on April 26, 2003, at approximately

11:30 p.m. to midnight. The group stopped briefly at one bar and then decided not to go into

the establishment. Petitioner got out of the vehicle on Lucy Street and was picked up by

Tony Thomas, Courtney Gordon, and Antonio Drive. The four men went to a bar on Elvis

Presley Boulevard, arriving at approximately 12:30 a.m. They stayed for a few minutes and

then drove to a nightclub at approximately 1:00 a.m. Petitioner noticed that he did not have

his driver’s license with him. Petitioner said that he received a telephone call from his

mother at approximately 2:00 a.m. She told Petitioner that police officers had been to her

house looking for Petitioner. The officers told her that Petitioner was armed and dangerous. 

Petitioner said that his girlfriend, Siobhan Fleming picked him up at the club and they drove

to Ms. Fleming’s house where Petitioner spent the night.

Petitioner stated that he provided the names and telephone numbers of his friends to

his trial counsel. Petitioner acknowledged that he had trouble trying to contact these people

but said trial counsel did not do any investigation as to their whereabouts. Petitioner stated

that trial counsel did not file a motion to suppress the driver’s license found in Ms. Lawson’s

vehicle. Trial counsel also did not ask for a DNA analysis of the hat Petitioner was allegedly

wearing at the time of the commission of the offenses, as Petitioner had requested. 

Petitioner stated that trial counsel “constantly” urged himto enter a plea of guilty. Petitioner

acknowledged that trial counsel negotiated a sentence of “seven point two,” but Petitioner

said that he wanted to proceed to trial because he did not want to accept any sentence that

carried a period of confinement. Petitioner stated that trial counsel did not want to go to trial

because Petitioner’s family could not afford to pay the attorney’s fee for services beyond the

plea negotiation stage.

On cross-examination, Petitioner acknowledged that the State extended six offers of

settlement, each offer involving less confinement time than the previous. Petitioner also

acknowledged that trial counsel explained each offer to him. Petitioner stated that he felt

that trial counsel was pressuring him to enter a plea of guilty because he kept bringing

different offers of settlement to him. Petitioner said that he was not aware that trial counsel

was required to present each offer to him. Petitioner did not recollect trial counsel stating

that he could not find any of the alibi witnesses based on the information Petitioner

provided. Petitioner acknowledged that he did not try to find the alibi witnesses himself

before trial. Petitioner acknowledged that Mr. Silva did not identify him as the perpetrator

from a line-up of eight African-American men. Petitioner agreed that trial counsel moved

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for a dismissal of the case based on the results of the line-up, which was granted by the

General Sessions Court. Petitioner acknowledged that he was arrested again for the charges

in the criminal trial court approximately five months later.

Sergeant James Terry Max, with the Memphis Police Department, testified that he

interviewed Mr. Silva in the hospital on April 29, 2003. Speaking through an interpreter,

Mr. Silva described the perpetrator’s vehicle but could only give a general description of the

perpetrator himself. Sergeant Max stated that the interview lasted only a short time because

Mr. Silva was heavily medicated. The next interview occurred on May 9, 2003. Mr. Silva,

through an interpreter, described the perpetrator as an African-American male and gave

information concerning the man’s height and complexion. Sergeant Max showed Mr. Silva

a photographic line-up. After a few minutes, Mr. Silva identified Petitioner as the

perpetrator, but Mr. Silva did not display much confidence in his choice. Sergeant Max

described Mr. Silva’s identification as “tentative.” On cross-examination, Sergeant Max

stated that Ms. Lawson identified Petitioner as the perpetrator from the photograph on the

driver’s license that was found in her vehicle.

Trial counsel stated that he did not appeal the imposition of consecutive sentencing

because he did not feel that he would prevail on the issue, and he felt that there was more

support for the issues he did raise. Trial counsel said that the trial court was very thorough

in its findings supporting consecutive sentences and “ruled within the bounds of the law.”

Trial counsel said that he did not request a jury instruction on aggravated assault as

a lesser included offense of aggravated robbery because the theory of defense was based on

identity, not that the charged offense did not occur. Trial counsel also believed that the jury

would not have convicted Petitioner of aggravated assault based on the evidence presented

concerning the robbery of two persons at gunpoint.

Trial counsel said that Petitioner was consistent in his description of his activities on

April 26, 2003. Initially, however, he did not discuss the potential of an alibi with Petitioner

because Petitioner was focused only on securing the dismissal of the charges against him. 

Trial counsel said that the State began settlement negotiations “pretty quickly.” When the

offer included a sentence of 7.2 years at twenty percent, trial counsel stated that he “began

practically begging” Petitioner to accept the offer. Trial counsel was aware that the State

had found Ms. Lawson, and that Ms. Lawson would testify at trial. 

Trial counsel stated that Petitioner always referred to his alibi witnesses by their

nicknames except for Ms. Fleming. Trial counsel asked Petitioner to give him any

information that would allow him to locate these people. Petitioner gave trial counsel some

telephone numbers in May 2003. Attempts to reach the witnesses by these numbers were

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unsuccessful. Trial counsel asked Petitioner to enlist his mother’s and Ms. Fleming’s

assistance in finding the witnesses, but he never heard from them. Trial counsel said that

Petitioner never showed any interest in talking about his alibi witnesses, and trial counsel

doubted that even if found they would corroborate Petitioner’s version of the events. Trial

counsel stated that “the State” had a list of the potential alibi witnesses and was also unable

to locate any of them. 

III. Standard of Review

To succeed on a challenge of ineffective assistance of counsel, the petitioner bears

the burden of establishing the allegations set forth in his petition by clear and convincing

evidence. T.C.A. § 40-30-210(f). However, the trial court’s application of the law to the

facts is reviewed de novo, without a presumption of correctness. Fields v. State, 40 S.W.3d

450, 458 (Tenn. 2001). A claim that counsel rendered ineffective assistance is a mixed

question of fact and law and therefore also subject to de novo review. Id.; State v. Burns,

6 S.W.3d 453, 461 (Tenn. 1999).

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

of counsel, he or she must establish that counsel’s performance fell below “the range of

competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975). In addition, he or she must show that counsel’s ineffective performance

actually adversely impacted his defense. Strickland v. Washington, 466 U.S. 668, 693, 104

S. Ct. 2052, 2067 (1984). In reviewing counsel’s performance, the distortions of hindsight

must be avoided, and this Court will not second-guess counsel’s decisions regarding trial

strategies and tactics. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The reviewing court,

therefore, should not conclude that a particular act or omission by counsel is unreasonable

merely because the strategy was unsuccessful. Strickland, 466 U.S. at 689, 104 S. Ct. at

2065. Rather, counsel’s alleged errors should be judged from counsel’s perspective at the

point of time they were made in light of all the facts and circumstances at that time. Id. at

690, 104 S. Ct. at 2066.

A petitioner must satisfy both prongs of the Strickland test before he or she may

prevail on a claim of ineffective assistance of counsel. See Henley v. State, 960 S.W.2d 572,

580 (Tenn. 1997). That is, a petitioner must not only show that his or her counsel’s

performance fell below acceptable standards, but that such performance was prejudicial to

the petitioner. Id. Failure to satisfy either prong will result in the denial of relief. Id. 

Accordingly, this Court need not address one of the components if the petitioner fails to

establish the other. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.

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IV. Jury Instructions

Petitioner argues that trial counsel’s assistance was ineffective because he failed to

request in writing a jury instruction on aggravated assault as a lesser included offense of

aggravated robbery. Petitioner contends that he was prejudiced by trial counsel’s decision

to forego such a request because the State did not establish beyond a reasonable doubt that

the jury would not have convicted him of aggravated assault had they been extended the

opportunity to do so. 

We note at the outset that Petitioner, not the State, has the burden of proving that he

or she was prejudiced by an alleged deficiency on the part of trial or appellate counsel. 

Strickland, 466 U.S. at 687, 104 S.Ct. 2052. 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.” Id., 466 U.S. at 694. 

A defendant is required to request in writing that the trial court instruct the jury on

any specifically identified lesser included offense. T.C.A. § 40-18-110(a). In the absence

of such a request, the trial court may charge the identified lesser included offense, but the

defendant is not entitled to the charge. Id. § 40-18-110 (b). Aggravated assault is a lesser

included offense of aggravated robbery. State v. Swift, 308 S.W.3d 827, 831-32 (Tenn.

2010); State v. Franklin, 130 S.W.3d 789, 798 (Tenn. Crim. App. 2003); State v. James

Carlos Ward, No. M2009-00417-CCA-R3-CD, 2010 WL 1949155, at *9 (Tenn. Crim.

App., at Nashville, May14, 2010); State v. Joseph Wayne Graves, No. W2007-02552-CCAR3-CD, 2009 WL 3273959, at *10 (Tenn. Crim. App., at Jackson, Oct. 13, 2010), perm. to

appeal denied (Tenn. Apr. 15, 2010). 

In the case sub judice, Petitioner was indicted for especially aggravated robbery in

one count and convicted of the lesser included offense of aggravated robbery. In another

count, Petitioner was charged with and convicted of aggravated robbery. We note that the

juryconsidered the lesser-included offenses of aggravated robberyand robberyin one count,

and robbery in the other count, and convicted Petitioner of aggravated robberyin each count,

to the exclusion of the immediate lesser included offense of robbery. Harmless error may

be shown where the jury convicts on the higher offense to the exclusion of the immediately

lesser offense, necessarily rejecting other lesser offenses. State v. Williams, 977 S.W.2d

101, 106 (Tenn. 1998). For this reason, we conclude that Petitioner was not prejudiced by

his trial counsel’s failure to request an instruction on the lesser included offense of

aggravated assault. 

Notwithstanding the jury’s rejection of an intermediate lesser offense, we also

conclude that the error is harmless in that it appears beyond a reasonable doubt that the error

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did not affect the outcome of the trial.” See State v. Allen, 69 S.W.3d 181, 191 (Tenn.

2002). As Petitioner candidly acknowledges in his brief, failure to instruct the jury on

aggravated assault as a lesser included offense is harmless error “when the proof

overwhelmingly showed that a theft occurred.” See State v. Banks, 271 S.W.3d 90, 129-30

(Tenn. 2008) (noting that the only variation between aggravated robbery and aggravated

assault is the robbery component); see also State v. Henry Hawkins, No. W2005-00781-

CCA-R3-CD, 2006 WL 1703817, at *16 (Tenn. Crim. App., at Jackson, June 21, 2006),

perm. to app. denied (Tenn. Oct. 30, 2006) (concluding that “no rational juror could have

found the defendant committed an assault or aggravated assault without committing a

robberyor an aggravated robberyand, therefore, the trial court’s failure to charge aggravated

assault as a lesser included offense is harmless error). Ms. Lawson testified at trial that

Petitioner was armed with two guns. He pointed one gun at her head when he demanded

her car keys and kept the other gun by his side. Ms. Lawson said that when the other bar

patrons rushed into the parking lot in response to her screams, Petitioner ran off with her

purse. Mr. Silva testified that Petitioner approached him, pointed a gun at him, and

demanded money. Mr. Silva said that he threw his wallet on the ground in front of

Petitioner and then ran away.

Petitioner acknowledges that “the proof clearly showed that he committed a theft

against both Angel Silva and Maria Lawson.” Trial counsel testified at the post-conviction

hearing that he did not request an instruction on aggravated assault because Petitioner did

not deny that the offenses occurred, just that he was not the perpetrator. Petitioner does not

offer any reason why his case is distinguishable from the situations presented in Banks and

Henry Hawkins. Based on the foregoing, we conclude that Petitioner has failed to show that

he was prejudiced by trial counsel’s failure to request a jury instruction on aggravated

assault. Petitioner is not entitled to relief on this issue.

V. Sentencing Issues

Petitioner argues that trial counsel’s assistance was ineffective because he failed to

appeal the trial court’s imposition of consecutive sentencing. Petitioner submits that an

effective sentence of forty years was “greater than that deserved for the offense committed”

and not “justly deserved.” See T.C.A.§ 40-35-102(1), -103(2). Petitioner points out that he

was acquitted of especially aggravated robbery regarding the offense against Mr. Silva, the

jury having concluded he did not cause any serious bodily injury. He also argues that his

prior criminal record consists primarily of juvenile offenses, and the current crimes were

committed “in a short period of time as part of one episode.” Petitioner also argues that no

one was injured during the commission of the prior offenses for which he had been

convicted. 

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A criminal defendant has a constitutional right to counsel on his first appeal, and this

right necessarily includes the right to effective assistance of counsel. House v. State, 911

S.W.2d 705, 712 (Tenn. 1995) (citing Douglas v. California, 372 U.S. 353, 83 S.Ct. 814

(1963); Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993)). The same principles applicable

to deciding the effectiveness of trial counsel apply to appellate counsel. House, 911 S.W.2d

at 712. Thus, Petitioner’s appellate counsel must not only have been ineffective in his

performance, Petitioner must also have been prejudiced by appellate counsel’s deficient

conduct. Strickland, 466 U.S. at 693. To demonstrate he was prejudiced by appellate

counsel’s actions, Petitioner must show that there is a reasonable probability that the result

on appeal would have been different but for the errors of counsel. Id. at 694.

The trial court sentenced Petitioner as a Range III, persistent offender, based on

Petitioner’s conviction in November 2000 of two counts of especially aggravated

kidnapping and one count of especially aggravated robbery, all Class B felonies, in

November 2000. See T.C.A. § 40-35-107(2). According to the presentence report,

Petitioner was sixteen years old when these offenses were committed in July 1998, and he

was transferred to the Shelby County Criminal Court to be tried as an adult. In addition, if

a defendant is convicted of one or more criminal offense, consecutive sentencing may be

imposed at the discretion of the trial court if one or more of the criteria in Tennessee Code

Annotated section 40-35-115(b) is present. In this instance, the trial court found that

Petitioner had an extensive history of criminal activity, and that he was a dangerous offender

whose behavior indicated little or no regard for human life and no hesitation about

committing a crime in which the risk to human life is high. T.C.A. § 40-35-115(b)(2), (4).

In addition to his three convictions in 2000, Petitioner has the following juvenile

adjudications: unlawful possession of a weapon, driving while license suspended, refusal

to submit to a blood alcohol test, and reckless driving in 1998; burglary of an automobile,

theft of an automobile and possession of cocaine with intent to sell in 1996; aggravated

assault, coercion of a witness, robbery, evading arrest, and two adjudications for theft of a

vehicle in 1995. In addition, Petitioner’s pre-sentence report indicates that he dropped out

of school in the ninth grade and has no history of employment.

In determining that Petitioner was a dangerous offender, the trial court found that the

circumstances surrounding the commission of the offenses were aggravated noting that not

only did Petitioner rob two people at gun point, he discharged his weapon in a crowded

parking lot. The trial court also considered the circumstances of Petitioner’s prior offenses. 

At the sentencing hearing on his aggravated robbery convictions, Dana Santos, the victim

of one of the especially aggravated kidnapping offenses, testified that she and her friend,

Jessica Neighbors, were stopped at a red light when Petitioner got into the back passenger

seat. Petitioner ordered Ms. Neighbors to “take him where he needed to go or he was going

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to hurt us.” Ms. Neighbors crossed the Mississippi state line and Petitioner directed her to

an abandoned apartment building. Petitioner told Ms. Neighbors to turn the headlights off. 

Petitioner held a gun to Ms. Neighbors’ temple, and told the women to get out of the vehicle. 

The women complied, and Ms. Santos stated that she and Ms. Neighbors ran behind a tree

because they were afraid that Petitioner was going to shoot them. Ms. Santos identified

Petitioner as her assailant at the sentencing hearing. 

Based on these factors, the trial court found that confinement for an extended period

was necessary to protect society from Petitioner’s unwillingness to lead a productive life. 

The trial court observed that it was apparent that “all this [petitioner] wants to do is put guns

on people and terrorize the community and be a big man with a gun.” The trial court found

that imposition of the minimum sentence for each aggravated robbery conviction and the

order of consecutive sentencing was reasonably related to the seriousness of the offenses. 

Trial counsel testified at the post-conviction hearing that he reviewed the motion for

new trial and chose those issues which he believed had a chance of success on the merits. 

Trial counsel said, however, that he believed that Petitioner met the criteria for consecutive

sentencing and that the trial court properly considered the principles of sentencing in

ordering Petitioner to serve his sentences consecutively. There is no requirement that

counsel raise a non-frivolous issue on appeal if, as a matter of professional judgment,

counsel feels the issue should not be addressed. See Carpenter v. State, 126 S.W.3d 879,

887 (Tenn. 2004). Based on our review, we conclude that the evidence does not

preponderate against the post-conviction court’s finding that trial court’s assistance in this

regard was not deficient.

Moreover, we conclude that Petitioner has failed to show that there is a reasonable

probability that the outcome of the appeal would have been different had trial counsel raised

the issue of consecutive sentencing on appeal. Petitioner’s history of criminal activity

supports the trial court’s finding that Petitioner has an extensive criminal record. This Court

has repeatedly approved the consideration of a defendant’s history of juvenile adjudications

in determining whether a defendant has an extensive record of criminal activity for

consecutive sentencing purposes. See State v. Gann, 251 S.W.3d 446, 465 (Tenn. Crim.

App. 2007); State v. Mickens, 123 S.W.3d 355, 396 (Tenn. Crim. App. 2003); State v. Andre

Perkins, No. W2007-02774-CCA-R3-CD, 2009 WL 1741400, at *9 (Tenn. Crim. App., at

Jackson, June 17, 2009), no perm. to appeal filed; State v. Robert Donterious Connor, No.

M2007-01619-CCA-R3-CD, 2008 WL 4614449, at *14 (Tenn. Crim. App., at Nashville,

Oct. 17, 2008), perm. to appeal denied (Tenn. July 27, 2009). The record also supports the

trial court’s finding that Petitioner is a dangerous offender, and that the trial court considered

all of the principles of sentencing. Petitioner is not entitled to relief on this issue. 

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CONCLUSION

After a thorough review, we affirm the judgment of the post-conviction court.

_________________________________

THOMAS T. WOODALL, JUDGE

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