Assigned on Briefs August 1, 2017
from the Criminal Court for Shelby County No. 10-07575 Lee V.
Jerome Johnson, was convicted of reckless endangerment,
aggravated assault, and solicitation of the filing of a false
police report. His convictions and effective sentence of
fifteen years, eleven months, and twenty-nine days were
affirmed on direct appeal. See State v. Jerome
Johnson, No. W2012-01754-CCA-R3-CD, 2013 WL 5488522, at
*1 (Tenn. Crim. App. Sept. 30, 2013), perm. app.
denied (Tenn. Feb. 11, 2014). Petitioner subsequently
sought post-conviction relief for ineffective assistance of
both trial counsel and appellate counsel. The post-conviction
court denied relief after a hearing. On appeal, we hold that
Petitioner failed to show that counsels' actions were
deficient and that Petitioner was prejudiced thereby.
Accordingly, the judgment of the post-conviction court is
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Mogy (on appeal), and Gregory D. Allen (at hearing), Memphis,
Tennessee, for the appellant, Jerome L. Johnson.
Herbert H. Slatery III, Attorney General and Reporter;
Zachary T. Hinkle, Assistant Attorney General; Amy P.
Weirich, District Attorney General; and Ann Schiller,
Assistant District Attorney General, for the appellee, State
Timothy L. Easter, J., delivered the opinion of the court, in
which James Curwood Witt, Jr., and Robert W. Wedemeyer, JJ.,
TIMOTHY L. EASTER, JUDGE
and Procedural History
June 25, 2010, Petitioner verbally abused and severely beat
the victim, his girlfriend, for a period of ten minutes after
returning from a party. See Jerome Johnson, 2013 WL
5488522, at *1. The victim suffered multiple injuries from
the beating, including a fractured nose, several fractured
ribs, a punctured and collapsed lung, swollen eyes and neck,
and bruises and lacerations on her face. Id. The
next morning, Petitioner beat the victim again, and told the
victim that "if [she] didn't say someone jumped on
[her], . . . he wasn't gonna [sic] get [her] any
help." Id. at *2. On December 2, 2010,
Petitioner was indicted by the Shelby County Grand Jury for
attempted second-degree murder in Count One, aggravated
assault in Count Two, and solicitation of the filing of a
false police report in Count Three. Id. at *1.
the date for Petitioner's trial was set for August 2011,
but the trial date was continued and eventually set for May
2012. In the time between Petitioner's indictment and his
trial, our supreme court decided State v. Watkins,
362 S.W.3d 530 (Tenn. 2012), on March 9, 2012. In
Watkins, our supreme court adopted the federal
double jeopardy standard, more commonly known as the
Blockburger test from Blockburger v. United
States, 284 U.S. 299 (1932), and abandoned the
state-specific standard set forth in State v.
Denton, 938 S.W.2d 373 (Tenn. 1996). Watkins,
362 S.W.3d at 556. Prior to trial, the trial court informed
Petitioner of the Watkins decision and its
implications in Petitioner's case. The trial court
explained that, under the Blockburger test,
Petitioner could be convicted, punished, and sentenced for
charges that involved the same conduct. In light of that
information, Petitioner still indicated that he did not want
to accept the State's offer for a guilty plea and wanted
to proceed to trial. There is no indication in the appellate
record that trial counsel advocated for the application of
the Denton test prior to trial or during trial. On
May 17, 2012, Petitioner was convicted of reckless
endangerment as a lesser included offense in Count One.
Jerome Johnson, 2013 WL 5488522, at *1. In Counts
Two and Three, Petitioner was convicted as charged.
was sentenced to fifteen years' imprisonment as a Range
III, persistent offender for the aggravated assault
conviction in Count Two, and eleven months and twenty-nine
days each for the reckless endangerment conviction in Count
One and the solicitation of the filing of a false police
report in Count Three. Id. The trial court ordered
the sentences in Count One and Count Two to run concurrently,
and the sentence in Count Three to run consecutively.
trial court denied Petitioner's motion for a new trial on
July 20, 2012, and Petitioner appealed his case, arguing only
sufficiency of the evidence. This Court affirmed
Petitioner's conviction. Id. at *10. Petitioner
filed a timely petition for post-conviction relief, counsel
was appointed, and an amended petition was filed on April 10,
2015. A supplement to the petition was filed on February 23,
2016. The post-conviction court held a hearing on the
petition on August 16, 2016.
hearing, Petitioner's trial counsel stated that she was
aware of the change in the standard for determining double
jeopardy violations in Tennessee. She further acknowledged
that under the Denton test, the convictions for
aggravated assault and attempted second-degree murder would
merge. However, she admitted that she never objected to the
indictment containing the aforementioned charges. She
explained that the reason that the trial was continued and
reset was that the Assistant District Attorney needed more
time to obtain the relevant medical records for trial.