Assigned on Briefs: November 1, 2016
from the Criminal Court for Shelby County No. 09-06118 James
C. Beasley, Jr., Judge
Petitioner, Mahlon Johnson, appeals the denial of
post-conviction relief for his convictions for sexual battery
and aggravated assault. On appeal, he argues that he received
ineffective assistance of counsel. After review, we affirm
the judgment of the post-conviction court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Constance Wooden Alexander, Memphis, Tennessee, for the
Petitioner, Mahlon Johnson.
Herbert H. Slatery III, Attorney General and Reporter; Brent
C. Cherry, Senior Counsel; Amy P. Weirich, District Attorney
General; and Ann Schiller, Assistant District Attorney
General, for the Appellee, State of Tennessee.
Camille R. McMullen, J., delivered the opinion of the court,
in which John Everett Williams and J. Ross Dyer, JJ., joined.
CAMILLE R. McMULLEN, JUDGE
Petitioner was indicted by the Shelby County Grand Jury for
two counts of aggravated rape, one count of aggravated
assault, and one count of aggravated burglary. State v.
Mahlon Johnson, No. W2011-01786-CCA-R3-CD, 2013 WL
501779, at *1 (Tenn. Crim. App. Feb. 7, 2013). The charges
stemmed from an altercation that occurred on October 31,
2008, between the Petitioner and his wife, the victim.
Id. at *1. This court summarized the facts
underlying the Petitioner's charges in its opinion on
direct appeal. Id. at *1-8. In short, the Petitioner
and the victim had been separated at the time of the
altercation, and the victim was at home asleep when she was
awakened during the night by the Petitioner, who did not live
in the home. Id. at *1. The victim testified that
the Petitioner accused the victim of cheating on him and then
became aggressive, eventually raping the victim both
vaginally and anally, as well as brutally assaulting her.
Id. at *2.
State pursued two aggravated rape charges, and the jury
returned guilty verdicts of the lesser included offense of
sexual battery on both counts. The jury acquitted the
Petitioner of aggravated burglary but found him guilty of
aggravated assault. The trial court sentenced the Petitioner
to an effective sentence of twenty-seven years in the
Tennessee Department of Correction. The Petitioner appealed,
claiming insufficiency of the evidence, failure to merge his
convictions, double jeopardy violations, and improper
sentencing. On direct appeal, this court affirmed the
Petitioner's convictions and sentence.
Petitioner filed a pro se petition for post-conviction relief
on November 13, 2013, alleging that his two trial attorneys
provided ineffective assistance of counsel on numerous
grounds. The post-conviction court determined that the
Petitioner had a colorable claim and appointed counsel on
November 14, 2013. Petitioner's post-conviction counsel
did not file an amended petition, and an evidentiary hearing
was held on February 26, 2016.
post-conviction hearing, the Petitioner testified that he met
with one of his trial attorneys twice before trial and that
he did not meet his other trial attorney until the day of
trial. The Petitioner said that one of his issues with trial
counsel was that the Petitioner was "indicted up on the
wrong indictment" for his sexual battery conviction and
that "it was invalid due to [the] statutory spouse
exclusion." The Petitioner testified that he believed
spousal rape was valid under Tennessee law. The Petitioner
also testified that counsel failed to include certain issues
in his motion for new trial and failed "to merge the
sexual battery and the aggravated assault conviction
together, because it all happened in one continuous
Petitioner acknowledged that he was charged with two counts
of aggravated rape and that, considering the notice of
impeachment and notice of enhancement factors filed against
him, he could have received up to sixty years for each count
of rape as a career offender. The Petitioner testified that
he also believed he should not have received consecutive
sentences and that his aggravated assault charge should have
been an assault charge because he never used a weapon. The
Petitioner confirmed that trial counsel was ineffective for
failing to include these issues in his motion for new trial.
However, when asked if he was pleased with the way trial
counsel tried his case, the Petitioner responded that
"the case, ...