IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs October 2, 2012

ABRON SPRAGGINS v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 08-02312 W. Mark Ward, Judge

No. W2012-00561-CCA-R3-PC - Filed October 31, 2012

Much aggrieved by his convictions of aggravated assault and felony reckless endangerment,

the petitioner, Abron Spraggins,sought post-conviction relief in the Shelby County Criminal

Court, alleging that he was deprived of the effective assistance of counsel. Following an

evidentiary hearing, the post-conviction court denied relief. On appeal, the petitioner

contends that trial counsel performed deficiently by failing to introduce alibi evidence at trial

and by failing to object to a police officer’s testimony concerning his knowledge of the

petitioner and that these omissions inured to his detriment. Discerning no error, we affirm

the order of the post-conviction court.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the Court, in which JEFFREY S.

BIVINS and ROGER A. PAGE, JJ., joined.

R. Todd Mosley, Memphis, Tennessee, for the appellant, Abron Spraggins.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney

General; Amy P. Weirich, District Attorney General; and Jennifer D. Morris, Assistant

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

OPINION

A Shelby County Criminal Court jury convicted the petitioner of one count of

aggravated assault and one count of felony reckless endangerment for threatening Charlesetta

Patterson, the maternal grandmother of the petitioner’s six-week old infant, and one of Ms.

Patterson’s children with a gun during an October 12, 2007 altercation concerning his taking

the infant from Ms. Patterson’s residence. The trial court imposed a Range II total effective

sentence of 13 years’ incarceration. This court affirmed the judgments on direct appeal. See
State v. Abron Spraggins, No. W2009-01073-CCA-R3-CD (Tenn. Crim. App.,Jackson, May

7, 2010), perm. app. denied (Tenn. Nov. 18, 2010).

On February 7, 2011, the petitioner filed a timely petition for post-conviction

relief alleging multiple instances of ineffective assistance of counsel. Following the

appointment of counsel and the amendment of the petition, the post-conviction court held an

evidentiary hearing.

The petitioner testified that trial counsel never met with him at the jail and only

counseled him for a few minutes at each pretrial hearing. He said that he refused to accept

any plea offers made by the State, claiming his innocence. The petitioner testified that he

provided information to trial counsel regarding an alibi that he was living in Iowa with a

woman named Ebony Wells at the time of the offense. To that end, he provided trial counsel

documentary evidence concerning the issuance of an Iowa “EBT” card in his name for food

stamps. He claimed that trial counsel refused to investigate or present any evidence

concerning his purported alibi. The petitioner further claimed that a police officer testified

at trial to his familiarity with the petitioner, referencing “past incidents.”

On cross-examination, the petitioner acknowledged that trial counsel requested a

continuance on the day of trial to investigate further and locate alibi witnesses, but the

petitioner told the trial court that he did not want a continuance. He also admitted that the

State made a plea offer of four years’ incarceration on the day of trial, but he refused the

offer.

Trial counsel testified that she met with the petitioner on each court date and

also visited the petitioner in the jail. She said that she investigated the EBT card evidence

from Iowa and learned that it was still being used after the petitioner’s arrest, which “brought

into issue . . . a fraud issue and another crime.” Thus, she determined the EBT card evidence

was not exculpatory and could possibly lead to the petitioner’s arrest for other offenses. She

recalled the petitioner’s providing her with names and telephone numbers of purported Iowa

witnesses. She said that she telephoned and left messages via the numbers, but she received

no responses. She testified further, “We don’t send investigators to Iowa.” Regarding her

failing to object to a police officer’s reference of familiarity with the petitioner, she testified

that the police officer said “[t]hat he knew [the petitioner] from the neighborhood.” She

determined it best not to object to this somewhat innocuous comment, rather than drawing

further attention to the comment. Trial counsel also recalled the petitioner’s opposition to

a continuance on the day of trial.

With this evidence, the post-conviction court denied relief. The court

specifically found that the petitioner had failed to establish that trial counsel was not

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adequately prepared for trial. The court also found that the petitioner had failed to establish

any claims relative to trial counsel’s failure to present an alibi defense, noting that the

petitioner did not present any alibi witnesses at the evidentiary hearing.

On appeal, the petitioner argues that he is entitled to post-conviction relief

based upon his claims of ineffective assistance relative to trial counsel’s failure to introduce

alibi evidence and failure to object to the police officer’s reference of familiarity with the

petitioner. The State arguesthat the post-conviction court’s denial of relief should be upheld.

Post-conviction relief is available only “when the conviction orsentence is void

or voidable because of the abridgment of any right guaranteed by the Constitution of

Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103 (2006). A postconviction petitioner bears the burden of proving his or her allegations by clear and

convincing evidence. Id. § 40-30-110(f). On appeal, the post-conviction court’s findings of

fact are conclusive unless the evidence preponderates against them. Henley v. State, 960

S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App.

1997). By contrast, the post-conviction court’s conclusions of law receive no deference or

presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).

To establish entitlement to post-conviction relief via a claim of ineffective

assistance of counsel, the petitioner must affirmatively establish first that “the advice given,

or the services rendered by the attorney, are [not] within the range of competence demanded

of attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and

second that his counsel’s deficient performance “actually had an adverse effect on the

defense,” Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, the petitioner

“mustshow that there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Id. at 694. Should the petitioner fail

to establish either deficient performance or prejudice, he is not entitled to relief. Id. at 697;

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be

followed.” Strickland, 466 U.S. at 697.

When reviewing a claim of ineffective assistance of counsel, we will not grant

the petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or

provide relief on the basis of a sound, but unsuccessful, tactical decision made during the

course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).

Such deference to the tactical decisions of counsel, however, applies only if the choices are

made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.

Crim. App. 1992).

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Claims of ineffective assistance of counsel are mixed questions of law and fact.

Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010); State v. Honeycutt, 54 S.W.3d 762, 766-67

(Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). When reviewing the

application of law to the post-conviction court’s factual findings, our review is de novo, and

the post-conviction court’s conclusions of law are given no presumption of correctness.

Fields, 40 S.W.3d at 457-58; see also State v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

In our view, the record supports the post-conviction court’s denial of relief.

Trial counsel testified that her investigation of the EBT card led her to conclude that

someone other than the petitioner used the card while he was incarcerated in Shelby County,

undermining any exculpatory value of the evidence and exposing the petitioner to criminal

liability. She also testified that she was unable to locate any witnesses offered by the

petitioner. Further, we note that the petitioner failed to present any purported alibi witnesses

at the evidentiary hearing. In the absence of such evidence, the petitioner failed to establish

these claims. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990) (holding that

a post-conviction petitioner generally fails to establish his claim that counsel did not properly

investigate or call a witness if he does not present the witness or evidence to the postconviction court because a post-conviction court may not speculate “on the question of . . .

what a witness’s testimony might have been if introduced” at trial). Likewise, trial counsel’s

decision not to draw further attention to the police officer’s reference to the petitioner was

tactical and not deficient performance.

Accordingly, we affirm the post-conviction court’s order denying relief.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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