Assigned on Briefs October 2, 2019
from the Criminal Court for Shelby County No. 13-00653 Chris
B. Craft, Judge
Petitioner, John Simmons, pleaded guilty to first degree
murder and was sentenced to life imprisonment. The Petitioner
filed a petition for post-conviction relief, claiming that he
received the ineffective assistance of counsel and alleging
prosecutorial misconduct. After a hearing, the
post-conviction court denied relief. The Petitioner appeals
the denial, maintaining that he received ineffective
representation in violation of his constitutional right to
counsel. After review, we affirm the post-conviction
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Fortner, Memphis, Tennessee, for the appellant, John Simmons.
Herbert H. Slatery III, Attorney General and Reporter; Ronald
L. Coleman, Assistant Attorney General; Amy P. Weirich,
District Attorney General; and Leslie Byrd, Assistant
District Attorney General, for the appellee, State of
W. Wedemeyer, J., delivered the opinion of the court, in
which Thomas T. Woodall and Norma McGee Ogle, JJ., joined.
W. WEDEMEYER, JUDGE
April 13, 2015, the Petitioner pleaded guilty to first degree
premeditated murder and was sentenced to life imprisonment.
The following summary of the facts is from the trial
court's order denying the Petitioner's motion to
Brendia Westbrook Simmons, the wife of the [Petitioner], was
killed by gunshot on July 19, 2012. The victim and [the
Petitioner] had been leasing a home at 6390 Hunters Place
Drive in Memphis, Tennessee for a couple of years, but two or
three months prior to her death they had been having marriage
problems and she had separated from her husband, moving into
a hotel while he continued to stay at Hunters Place Drive.
The day of her death, the [Petitioner]'s mother Diane
Simmons had called his sister, Juwanda Simmons, stating that
the [Petitioner] was threatening to kill Brendia. Around 5 or
6 pm, Brendia went to her daughter Denecia (a/k/a Cynthia and
Neecie) Westbrook's home to do laundry, and during this
time she left in her car to get ice at the Exxon around the
corner. The Exxon was also around the corner from the house
on Hunters Place Drive. The trip would have taken only 5 or 6
minutes, and so after an hour Neecie became worried because
her mother had not returned and was not answering her cell
phone. She and her sister Candice Westbrook drove around
looking for her or her car (Walmart, etc.), including going
by the house on Hunters Place Drive, knocking on the door and
receiving no answer. During this search, the [Petitioner]
showed up driving Brendia's car at his mother's house
(Diane Simmons) with Diane's sister, his aunt, Geraldine
Simmons present, and told his mother he had killed Brendia.
When she asked "Where is Brendia now, John," he
answered "Ma, I killed her. She's at the
house." He then threw Brendia's car keys to
Geraldine's fiancée/husband Willie, and he threw
them back to the [Petitioner], who left in Brendia's car.
Petitioner did not file an appeal of his case but timely
filed a post-conviction petition on April 1, 2016. The
post-conviction court appointed an attorney and held a
hearing on the petition.
Petitioner testified that his trial attorney
("Counsel") was appointed and that Counsel met with
him numerous times. The Petitioner recalled that, during
these meetings, Counsel would discuss the case with him.
Counsel told the Petitioner about the State's proof
against him, and the Petitioner provided his "side of
the story." The Petitioner said that he initially
believed Counsel "understood what was going on" but
that, as the trial date neared, Counsel's "attention
span went from one-hundred to zero." The Petitioner
wanted Counsel to "pull" phone records. Counsel
assured the Petitioner that he would do so, but the phone
records were never "pulled." The Petitioner
explained that the State alleged that he called his mother
and told her he was going to kill his wife, so he wanted the
phone records to refute this allegation.
Petitioner testified that he met with the investigator for
his case and that he provided potential witnesses for her to
interview. The Petitioner was unsure of what the investigator
did with the list, but she told ...