Alvin Malone v. State of Tennessee

Petitioner, Alvin Malone, was convicted by a Shelby County jury of two counts of first degree felony murder, one count of first degree premeditated murder, and two counts of especially aggravated kidnapping. The first degree murder conviction merged with one of the felony murder convictions, and Petitioner was sentenced to two life sentences and two twenty-year sentences, all running consecutively. This Court affirmed Petitioner’s convictions and sentences on direct appeal. State v. Alvin Malone, No. W2007-01119-CCA-R3-CD, 2008 Tenn. Crim. App. LEXIS 813, at *73-74 (Oct. 2, 2008), perm. app. denied (Tenn. Mar. 23, 2009). Petitioner filed a petition for post-conviction relief, alleging that he received ineffective assistance of counsel both at trial and on direct appeal. After several evidentiary hearings over an extended period of time, the post-conviction court granted relief in part and denied it in part. As it relates to this appeal, the post-conviction court found that Petitioner had not established deficient performance as to trial counsel’s failure to call two proposed alibi witnesses. The post-conviction court held that Petitioner was not entitled to relief from his convictions. However, the post-conviction court found that Petitioner was prejudiced by both trial and appellate counsel’s failure to object to or raise on appeal the trial court’s imposition of consecutive sentences based on the dangerous offender category without making the requisite findings under State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995). The post-conviction court granted relief in the form of a new sentencing hearing solely on the issue of consecutive sentences. Both the State and Petitioner appealed. Upon our review of the record and applicable law, we affirm the post-conviction court’s decision on the issue of the alibi witnesses. However, we find that Petitioner has failed to show by clear and convincing evidence that he was prejudiced by trial and appellate counsel’s failure to raise the Wilkerson issue. Therefore, we reverse the post-conviction court’s judgment on that matter and reinstate Petitioner’s sentences as they were originally ordered by the trial court.