IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs December 7, 2011

ROBERT DONTERIOUS CONNER v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Davidson County

No. 2004-D-3081 Steve Dozier, Judge

No. M2011-00254-CCA-R3-PC - Filed July 12, 2012

Petitioner, Robert D. Conner, appeals the post-conviction court’s dismissal of his petition for

post-conviction relief following an evidentiary hearing. Petitioner attacks his convictionsfor

second degree murder and aggravated assault following a jury trial in which he was charged

with first degree murder and aggravated assault. The sole ground for relief argued on appeal

is that Petitioner was denied effective assistance of counsel because trial counsel failed to file

a written motion pre-trial for the severance of offenses, since the charges involved two

different victims and occurred on different days. After a thorough review of the parties’

briefs and the record, we affirm the judgment of the post-conviction court pursuant to Rule

20 of the Rules of the Court of Criminal Appeals of Tennessee.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Davidson County Criminal

Court Affirmed Pursuant to Rule 20 of the Tennessee Court of Criminal Appeals

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

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

Ryan C. Caldwell, Nashville, Tennessee, for appellant, Robert Donterious Conner.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant

Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Rachel

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

MEMORANDUM OPINION

The facts underlying the convictions can be found in this Court’s opinion in the direct

appeal, State v. Robert Donterious Conner, No. M2007-01619-CCA-R3-CD, 2008 WL

4614449 (Tenn. Crim. App. Oct. 17, 2008) perm. app. denied (Tenn., July 27, 2009).
Petitioner testified at the evidentiary hearing, and no further proof was offered in support of

his petition for post-conviction relief. The only witness called to testify by the State was

Petitioner’s trial counsel. Subsequent to the evidentiary hearing, the post-conviction court

entered an order denying relief, which set forth findings of fact and conclusions of law. As

to the one ground for relief argued on appeal, the post-conviction court’s order states as

follows:

Finally, the petitioner argues that trial counsel failed to file a Motion

to Sever the Offenses of Count 1 (First Degree Murder) and Count 3

(Aggravated Assault). While the Court acknowledges that there may be

some issue as to whether a severance of the aforementioned counts would

have been appropriate if raised, the petitioner has not demonstrated actual

prejudice to the defense by clear and convincing evidence. Under Tenn. R.

Evid. 404(b)(2),statements made by the victim of Count 1 that dealt with the

petitioner’s involvement in [ ] the charged Aggravated Assault (Count 3)

would have been admissible to establish the motive and identity of

petitioner in Count 1. Thus, the Court finds that the [petitioner] has not

shown a reasonable probability that the result of the proceeding would have

been different if a severance had been granted. The Court finds that the

petitioner has failed to prove this allegation by clear and convincing

evidence.

No proof was presented at the post-conviction hearing to show that a motion to sever

would have been granted had a written motion to sever been filed by trial counsel. Petitioner

did not testify about the severance issue during his direct examination at the post-conviction

hearing. The only testimony by Petitioner regarding the severance issue was during crossexamination by the Assistant District Attorney General. The following transpired:

[Assistant District Attorney]: Okay – the other reason you’re asking for

a new trial today is because you say your

lawyer, [trial counsel], didn’t file a motion

to sever; is that right?

[Petitioner]: Yes, ma’am.

[Assistant District Attorney]: Do you know what that means?

[Petitioner]: No, ma’am.

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[Assistant District Attorney]: So you didn’t really want him to do that if

you don’t know what that is, right?

[Petitioner]: I got somebody helping me on my case.

Concerning the severance issue trial counsel testified that he believed he presented

an oral motion for a severance of offenses for trial, but the request was denied. No testimony

was elicited from trial counsel which could show the basis for a motion to sever offenses.

Notwithstanding the fact that the post-conviction court mentioned in its order that “there may

be some issue as to whether a severance” would have been appropriate, it would be pure

speculation for this Court to conclude from the record of the post-conviction proceedingsthat

either (1) trial counsel was deficient by not filing a motion to sever offenses or (2) that

prejudice resulted to Petitioner because the severance motion was not filed.

A petitioner in a post-conviction proceeding bears the burden of proving factual

allegations (in this case that a motion for severance of offenses would have been meritorious

if filed by trial counsel) by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f).

Petitioner’s proof at the post-conviction hearing fell far short of the “clear and convincing”

standard. Petitioner is not entitled to relief in this appeal.

CONCLUSION

The judgment of the trial court was in a proceeding without a jury, it was not a

determination of guilt, the evidence does not preponderate against the finding of the trial

court, and no error of law requiring a reversal of the judgment is apparent on the record.

Accordingly, the judgment of the trial court is affirmed by memorandum opinion pursuant

to Rule 20 of the Rules of the Court of Criminal Appeals of Tennessee.

_________________________________________

THOMAS T. WOODALL, JUDGE

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