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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
AUGUST 2000 Session CARL ROSS v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Shelby County No. P-19898 Joe Brown, Judge

No. W1999-01455-CCA-R3-PC - Filed October 25, 2000

The petitioner, Carl Ross, appeals from the Shelby County Criminal Court's dismissal of his petition for post-conviction relief in which he asserted various instances of ineffective assistance of counsel. Because we conclude that the record supports the lower court's determination that the petitioner failed to establish his claims by clear and convincing evidence, we affirm the dismissal of the postconviction petition. Tenn. R. App. P. 3; Judgment of the Trial Court is AFFIRMED. JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN EVERETT WILLIAMS, JJ., joined. Eric Scott Hall, Memphis, Tennessee, for the appellant, Carl Ross. Paul G. Summers, Attorney General & Reporter, Mark E. Davidson, Assistant Attorney General, William L. Gibbons, District Attorney General, Scott Gordon, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION

The petitioner, Carl Ross, appeals the Shelby County Criminal Court's dismissal of his petition for post-conviction relief in which he challenged his convictions in that court of two counts of attempt to commit second degree murder, three counts of aggravated robbery, and one count of theft. After a jury rendered the verdicts of guilty, the conviction court sentenced the petitioner to an effective sentence of 162 years to be served in the Department of Correction as a career offender at 60 percent. The convictions and sentences were affirmed by this court on direct appeal. See State v. Carl Ross, No. 02C01-9510-CR-00301 (Tenn. Crim. App., Jackson, Jan. 28, 1997), perm. app. denied (Tenn. 1997). In his post-conviction petition, the petitioner makes several claims of ineffective assistance of trial and appellate counsel. We have reviewed the record, the

briefs of the parties, and the applicable law. We affirm the lower court's dismissal of the petition.

On appeal, the petitioner claims the following instances of ineffective assistance of counsel: 1. Failure to call and use alibi witnesses. 2. Failure to advise the petitioner relative to his rights to testify and not to testify. 3. Failure to adequately challenge consecutive sentencing on appeal. 4. Failure to explore a claim that investigating officers erroneously selected the petitioner as a suspect, when a photograph that the officers believed depicted a suspect was actually a photograph of the petitioner's brother. 5. Failure to transcribe the preliminary hearing and to exploit an inconsistency between a police officer's trial testimony and his preliminary hearing testimony. 6. Failure to emphasize exculpatory inferences that the jury could have drawn from the evidence. 7. Failure to provide the petitioner with discovery materials, which limited the petitioner's ability to weigh the merits of a plea offer as against going to trial. 8. Failure to advise the petitioner concerning the effect of him being declared a career offender. 9. Failure to controvert statements in the presentence report concerning the petitioner's work history. 10. Failure to adequately meet with the petitioner to prepare for trial.1 The petitioner also argues in his brief to this court that the cumulative effect of the various instances of deficient performance amounted to prejudice sufficient to undermine confidence in the result of the trial. We gleaned the facts of the conviction offenses from this court's direct appeal opinion. See Carl Ross. On November 5, 1993, "four armed, masked men wearing gloves entered [a Memphis pawn shop], ordered all of the occupants to the floor and demanded the cash drawer keys." Id., slip op. at 2. One of the robbers assaulted the shop manager. The robbers took cash and removed guns and jewelry from the showcases. Id., slip op. at 3. During their flight from the pawn

T he post-conviction petition alleged additional instances of ineffective assistance which were not presented on appeal. Conversely, issues five through ten, as listed above, were raised at the post-conviction hearing but were not included in the petition. Because the parties proceeded below to litigate these issues and the sta te in its appellate brief does not challenge the issues as waived, we consider them in our resolution of the case.

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shop, two of the robbers emerged from their car, fired shots at police officers, got back into the car, and fled the scene. Id., slip op. at 4. One of the police officers identified the petitioner as a gunman who fired at him. Id. One of the co-defendants also identified the petitioner as a participant in the crimes. Id., slip op. at 5. Officers subsequently searched a "Looney Street address," the petitioner's last known address, as he had provided it to his parole officer. There, they found a number of firearms and proceeds from the pawn shop robbery. Id., slip op. at 7-8. At the post-conviction hearing, the petitioner testified that his counsel, William Johnson, failed to interview or subpoena several individuals who could have served as alibi witnesses, despite the petitioner providing him with the witnesses' names. He complained that counsel inadequately advised him of his rights to testify and not to testify and improperly instructed him not to testify. He avers that this instruction amounted to deficient performance of counsel, based upon the trial court allowing the state, over objection, to call in rebuttal the petitioner's parole officer, who testified that the petitioner's last known address was the location where the robbery proceeds and accouterments were discovered. The petitioner argues that the testimony of his parole officer suggested to the jury that the petitioner had been previously convicted of a crime, which undermined the previous decision that the petitioner should not testify to avoid disclosure of his prior felony convictions. See Tenn. R. Evid. 609 (impeachment of witnesses via evidence of prior convictions). Moreover, the petitioner argues that the parole officer's testimony should have been countered by the petitioner's testimony that he was not residing at the location where the inculpative evidence was found. The petitioner further testified that some of the investigating officers had a picture of a suspect who they believed was the petitioner, when the person in the photograph was actually the petitioner's brother. He argued that trial counsel was remiss in not pursuing this information. He also maintained that a police officer testified at the preliminary hearing that the petitioner emerged from the front seat of the getaway car and testified at trial that the petitioner was in the back seat. He argued that the officer was in a poor position relative to the car to see someone emerge from the front seat. Yet, trial counsel failed to procure a transcript of the preliminary hearing. The petitioner alleges that counsel also performed deficiently by failing to emphasize evidentiary inferences that favored the defense. For example, he complains that counsel did not point out that the petitioner was never identified via a lineup, although he was identified by witnesses at trial, or point out that a witness's description of a perpetrator with a gold tooth did not refer to the petitioner, who had three gold teeth. The petitioner further testified at the post-conviction hearing that, had his attorney adequately furnished him with discovery materials and advised him about the effect of a career offender status, he could have better assessed the state's plea offer versus his chances at trial. He claimed that the presentence report incorrectly indicated that he had worked only four months during his lifetime and that counsel failed to point out the error during the sentencing procedure. The petitioner alleged that his counsel only visited with him four or five times prior to trial.

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William Johnson testified at the post-conviction hearing that, prior to trial, the petitioner never mentioned an alibi and that the petitioner never supplied counsel with the names of any alibi witnesses, even though counsel asked him if he had an alibi. Counsel testified that the petitioner gave him a written list of witnesses and that he interviewed and called as witnesses each of the persons named. One of the witnesses, the petitioner's wife, was called to testify but invoked the privilege against self-incrimination. A second witness, a co-defendant, declined to testify. Counsel testified that he explained to the petitioner the benefits and disadvantages of testifying and of not testifying in his own behalf, including the state's right to use prior felonies for impeachment purposes. Counsel denied that he instructed the petitioner to testify or to not testify; rather, the petitioner himself opted not to testify. Counsel detailed the state's offer of a 40year effective sentence as a persistent offender in exchange for guilty pleas. He testified that he explained to the petitioner that, if he went to trial and he was found guilty, he would be sentenced as a career offender, a more punitive category than persistent offender. Mr. Johnson testified that he procured a copy of the preliminary hearing tape and reviewed it. He found no reason to order a transcript and, at trial, saw no significant inconsistencies between the officer's preliminary hearing testimony and his trial testimony. He stated that, prior to trial, he gave the petitioner all of the discovery materials that he had collected. In his estimation, he met with the petitioner more than four or five times and spoke with him on numerous occasions via telephone. In any event, he asserted that his pretrial conversations with the petitioner were more than adequate to ensure full investigation and preparation for trial. He argued to the jury reasonable doubt, based upon weaknesses in the state's identification testimony and upon the fact that the petitioner did not reside in the house where the robbery evidence was found. No other witnesses testified at the post-conviction hearing. Neither party introduced the preliminary hearing transcript, the trial transcript, or the presentence report. The post-conviction court found that Mr. Johnson is a "very fine, experienced trial lawyer and attorney, was probably caught in a nontenable [sic] position here, relative to the demands of the defendant, but he handled him well." It further found that counsel "picked a reasonable strategy upon which to proceed, that is, that the fruits of the crime found at the address in question did not belong to the defendant." The court expressly stated that it accredited Mr. Johnson's testimony as against the petitioner's. After making these findings, the court dismissed the petition for post-conviction relief. The post-conviction petitioner bears the burden of proving his or her allegations by clear and convincing evidence. Tenn. Code Ann.

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