Brandon E. Banks v. State of Tennessee

10/29/2026 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE July 15, 2026 Session BRANDON E. BANKS v. STATE OF TENNESSEE Appeal from the Criminal Court for Davidson County No. 2015-C-1517 Cynthia Chappell, Judge ___________________________________ No. M2025-01134-CCA-R3-PC ___________________________________ In 2017, a Davidson County jury convicted the Petitioner, Brandon E. Banks, of aggravated rape and aggravated sexual battery. Before trial, the trial court denied the Petitioner’s motion to suppress evidence obtained from his cell phone. The State then made two plea offers, which the Petitioner rejected before proceeding to trial. On direct appeal, this court held that the trial court erred in denying the motion to suppress but concluded that the error was harmless. The Petitioner later sought post-conviction relief, which the post-conviction court denied after a hearing. On appeal, the Petitioner raises three claims of ineffective assistance of counsel. He argues that trial counsel failed to communicate adequately with him during the plea negotiations that followed the suppression ruling. He also argues that trial counsel should have sought interlocutory review of that ruling or advised him to preserve the issue as a certified question of law. Finally, he argues that trial counsel should have called an expert witness to support his duress defense at trial. Upon our review, we respectfully affirm the judgment of the post-conviction court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed TOM GREENHOLTZ, J., delivered the opinion of the court, in which CAMILLE R. MCMULLEN and JILL BARTEE AYERS, JJ., joined. Eileen M. Parrish, Nashville, Tennessee, and Alfredo Parrish (pro hac vice), Des Moines, Iowa, for the appellant, Brandon E. Banks. Jonathan Skrmetti, Attorney General and Reporter; Benjamin A. Ball, Senior Assistant Attorney General; Glenn R. Funk, District Attorney General; Roger D. Moore, Deputy District Attorney General; and Janice Norman, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION FACTUAL BACKGROUND A. T HE P ETITIONER ’ S C ONVICTIONS In a previous appeal of this case, we summarized the facts underlying the Petitioner’s convictions, which we recount here in abbreviated form. See State v. Banks, No. M2018-00264-CCA-R3-CD, 2019 WL 4917164 (Tenn. Crim. App. Oct. 4, 2019), perm. app. denied (Tenn. Mar. 26, 2020). On June 23, 2013, the Petitioner, along with three other Vanderbilt University student-athletes, brought an unconscious victim to a dormitory room and participated in a thirty-two-minute sexual assault of her. See id. at *1. At the end of an interview a few days later, law enforcement seized the Petitioner’s cell phone. See id. The next day, officers executed a search warrant for the Petitioner’s electronic devices found on his person or in his dorm room. See id. A detective later searched the Petitioner’s cell phone and recovered images of the assault. See id. at *7. Trial counsel began plea discussions with the State after the last co-defendant’s trial. Before the Petitioner’s trial, however, he moved to suppress the evidence obtained from his cell phone. He argued that the phone was already in law enforcement’s possession when officers executed the search warrant. See Banks, 2019 WL 4917164, at *1. The trial court denied the motion. After that ruling, the State made two alternative plea offers on May 31, 2017. Under the first, the Petitioner would plead guilty to one count of rape and one count of aggravated sexual battery and serve twelve years. Under the second, he would plead guilty to five counts of rape and one count of aggravated sexual battery and serve ten years. The Petitioner rejected both offers and proceeded to trial. At trial, the State presented forty-two thumbnail images and three videos depicting the sexual assault. See Banks, 2019 WL 4917164, at *3. Twenty-three of the images came from the Petitioner’s cell phone, and the rest of the evidence came from other devices. See -2- id. at *7. Trial counsel pursued a duress defense, arguing that the Petitioner’s teammates pressured him into participating in the assault. Trial counsel did not call a defense expert, Dr. Malcolm Spica, because he feared that the State would replay the video evidence during cross-examination. The jury found the Petitioner guilty of one count of aggravated rape and one count of aggravated sexual battery. See Banks, 2019 WL 4917164, at *20. The trial court imposed concurrent sentences of fifteen years for aggravated rape and eight years for aggravated sexual battery, for an effective sentence of fifteen years. On direct appeal, the Petitioner challenged, among other issues, the trial court’s denial of his motion to suppress the cell phone evidence. See Banks, 2019 WL 4917164, at *20. This court agreed that the trial court erred in denying the motion, but we concluded that the error was harmless beyond a reasonable doubt. See id. at *21, *26. A video sent from one co-defendant’s cell phone and an image recovered from another co-defendant’s cell phone independently showed the Petitioner’s conduct. Id. at *22. Both the Petitioner and a co-defendant who testified for the State also identified that conduct at trial. Id. Accordingly, we concluded that “nothing in the record suggests the images recovered from the defendant’s cell phone contributed to the verdict returned by the jury.” Id. B. P OST-C ONVICTION P ROCEEDINGS On March 16, 2021, the Petitioner filed a petition for post-conviction relief raising several grounds for relief. As relevant here, he alleged that he was denied the effective assistance of counsel. Specifically, the Petitioner asserted that trial counsel failed to advise and communicate with the Petitioner, particularly during plea negotiations; failed to advise the Petitioner regarding interlocutory appeals for the denial of the motion to suppress; and failed to call an expert witness at trial. The post-conviction court conducted an evidentiary hearing at which four witnesses testified: trial counsel, the Petitioner, the Petitioner’s father, and a legal standard-of-care expert. After taking the matter under advisement, the post-conviction court denied relief in a written order filed on July 24, 2025. The court found that trial counsel was not ineffective in his communications with the Petitioner, crediting his testimony that he went directly to the Petitioner for any substantive discussion about the case and that he explained the plea offers to the Petitioner. -3-  The court further found that the Petitioner did not establish prejudice for trial counsel’s decision to forgo an interlocutory appeal on the denial of the motion to suppress because significant video and photographic evidence from other devices independently depicted the conduct underlying the convictions. Finally, the court found that trial counsel made a strategic decision not to call Dr. Spica because of the risk of replaying the video evidence to the jury. The Petitioner filed a timely notice of appeal three days later. See Tenn. R. App. P. 4(a). STANDARD OF APPELLATE REVIEW Our supreme court has recognized that a reviewing court must first identify the appropriate standard of review for each issue presented. State v. Enix, 653 S.W.3d 692, 698 (Tenn. 2022). In this case, the principal issue is whether the post-conviction court properly concluded that the Petitioner failed to establish his claim of ineffective assistance of counsel. As our supreme court has made clear, [a]ppellate review of an ineffective assistance of counsel claim is a mixed question of law and fact that this [c]ourt reviews de novo. Witness credibility, the weight and value of witness testimony, and the resolution of other factual issues brought about by the evidence are entitled to a presumption of correctness, which is overcome only when the preponderance of the evidence is otherwise. On the other hand, we accord no presumption of correctness to the post-conviction court’s conclusions of law, which are subject to purely de novo review. Phillips v. State, 647 S.W.3d 389, 400 (Tenn. 2022) (citations omitted). ANALYSIS The Petitioner in this case argues that the post-conviction court should have granted relief because he was denied the effective assistance of counsel in three respects. More specifically, he asserts that trial counsel failed to (1) adequately advise and communicate with him during plea negotiations; (2) advise him about, or pursue, interlocutory review of the trial court’s denial of his motion to suppress; and (3) call an expert witness at trial in support of his duress defense. The Tennessee Post-Conviction Procedure Act provides an avenue for relief “when the conviction or sentence is void or voidable because of the abridgment of any right -4- guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103 (2025). A post-conviction petitioner has the burden of proving his or her allegations of fact with clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f) (2025). For evidence to be clear and convincing, “it must eliminate any ‘serious or substantial doubt about the correctness of the conclusions drawn from the evidence.’” Arroyo v. State, 434 S.W.3d 555, 559 (Tenn. 2014) (quoting State v. Sexton, 368 S.W.3d 371, 404 (Tenn. 2012)). The Petitioner alleges in this appeal that he was denied the effective assistance of counsel during trial counsel’s representation. Article I, section 9 of the Tennessee Constitution establishes that every criminal defendant has “the right to be heard by himself and his counsel.” Similarly, the Sixth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” Indeed, “[t]hese constitutional provisions guarantee not simply the assistance of counsel, but rather the reasonably effective assistance of counsel.” Nesbit v. State, 452 S.W.3d 779, 786 (Tenn. 2014). Accordingly, a petitioner’s claim that he or she has been deprived “of effective assistance of counsel is a constitutional claim cognizable under the Post-Conviction Procedure Act.” Moore v. State, 485 S.W.3d 411, 418 (Tenn. 2016); see also Howard v. State, 604 S.W.3d 53, 57 (Tenn. 2020). “To prevail on a claim of ineffective assistance of counsel, a petitioner must establish both that counsel’s performance was deficient and that counsel’s deficiency prejudiced the defense.” Moore v. State, 485 S.W.3d 411, 418-19 (Tenn. 2016) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984); Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)). A petitioner may establish deficient performance by showing that “counsel’s representation fell below an objective standard of reasonableness.” Garcia v. State, 425 S.W.3d 248, 256 (Tenn. 2013) (quoting Strickland, 466 U.S. at 688). In making this determination, we consider “all the circumstances” and objectively measure counsel’s performance against the professional norms prevailing at the time of the representation. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015) (quoting Strickland, 466 U.S. at 688). “If the advice given or services rendered by counsel are ‘within the range of competence demanded of attorneys in criminal cases,’ counsel’s performance is not deficient.” Phillips, 647 S.W.3d at 407 (quoting Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). A petitioner must also establish prejudice by showing “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Davidson v. State, 453 S.W.3d 386, 393-94 (Tenn. 2014) (quoting Strickland, 466 U.S. at 694). “A reasonable probability is a probability sufficient to undermine -5- confidence in the outcome.” Howard v. State, 604 S.W.3d 53, 58 (Tenn. 2020) (quoting Strickland, 466 U.S. at 694). A. T RIAL C OUNSEL’ S C OMMUNICATION W ITH T HE P ETITIONER The Petitioner first argues that trial counsel did not adequately communicate with him during plea negotiations. He advances two related theories. First, he contends that trial counsel did not communicate directly with him about the State’s May 31 plea offers, including through an in-person meeting. Second, he contends that trial counsel relied improperly on his father as an intermediary. The State responds that the post-conviction court properly rejected this claim. It argues that the court credited trial counsel’s testimony that he discussed the alternative plea offers directly with the Petitioner and urged him to accept one of them. The State asserts, in part, that this credibility determination supports the post-conviction court’s finding that trial counsel did not render deficient performance. We agree with the State. 1. Background Because the Petitioner no longer lived in Nashville, trial counsel testified that the Petitioner agreed his father would serve as counsel’s primary contact. Counsel also testified that he discussed plea petitions, trial strategy, and other substantive matters directly with the Petitioner. According to trial counsel, the Petitioner would plead guilty only if he avoided lifetime registration as a sex offender and community supervision for life. After the State extended its plea offers, trial counsel recommended that the Petitioner accept the twelve-year offer because the risks of trial and appeal outweighed the possible rewards. On June 4, counsel emailed the Petitioner a plea petition for signature as part of a defense counteroffer. The email explained that the State’s ten-year offer required community supervision for life. The Petitioner signed the petition, which proposed a fifteen-year sentence with 30% release eligibility. The June 4 email conflicted with trial counsel’s recollection that he met with the Petitioner in Jackson that day and that the Petitioner signed the plea petition in his presence. Instead, the email instructed the Petitioner to sign and return the petition. Trial counsel acknowledged the discrepancy but maintained that the meeting occurred and that he may have mistaken its date. The Petitioner and his father denied that the Petitioner was in -6- Jackson on June 4, although the Petitioner acknowledged meeting with trial counsel during the spring of 2017. The parties also disputed trial counsel’s advice about whether the Petitioner should proceed to trial. The Petitioner testified that counsel led him to believe that trial was the only way to preserve his appeal, although he acknowledged that counsel advised him to settle after the suppression ruling. The Petitioner’s father testified that counsel told him that, if the Petitioner were his own son, he would go to trial to preserve the appeal. The post-conviction court resolved these conflicts in trial counsel’s favor. It credited his testimony that critical discussions about strategy, pleas, and trial decisions occurred directly with the Petitioner or with both the Petitioner and his father. The court also found that trial counsel was “clearly” in communication with the Petitioner both before the May 31 offers and between May 31 and June 5. It further found that the signed plea agreement undercut the Petitioner’s account. 2. Trial Counsel’s Communications with the Petitioner Counsel’s duty to provide reasonably effective assistance extends to the plea- bargaining process, including the communication of formal plea offers from the prosecution. Nesbit, 452 S.W.3d at 800. Nevertheless, an inadequate-communication claim does not turn on the number of meetings between counsel and the petitioner. Instead, the question is whether counsel and the petitioner were able to discuss “the facts of the case, the application of the law, significant case developments, and the petitioner’s objectives” so they could make informed decisions. Hall v. State, No. M2021-01555-CCA- R3-PC, 2023 WL 2726780, at *7 (Tenn. Crim. App. Mar. 31, 2023), no perm. app. filed. The Petitioner first argues that trial counsel did not adequately communicate with him directly about the State’s plea offers, including through an in-person meeting. The post-conviction court found otherwise, and the record supports that finding. In a supplemental petition, the Petitioner acknowledged that he received the State’s May 31 offers by email. On June 4, 2017, trial counsel emailed the alternative offers directly to the Petitioner and his father and gave them until the next day to decide whether to accept one of them. The post-conviction court also found that the parties had discussed the terms of the offers before these communications. The Petitioner acknowledged that trial counsel advised him to settle after the trial court denied the motion to suppress. -7-  The Petitioner nevertheless contends that these communications were inadequate because trial counsel did not meet with him in person to discuss the offers. Although the June 4 email contradicted trial counsel’s recollection that the Jackson meeting occurred on that date, trial counsel maintained that the meeting occurred and that he had mistaken the date. The Petitioner himself acknowledged that he met with trial counsel during the spring of 2017 to discuss what the defense would seek from the State. The post-conviction court considered the discrepancy but found that it did not undermine trial counsel’s account. Importantly, the post-conviction court did not rest its ruling on the date of the meeting. Instead, the court recognized that a face-to-face meeting “may be preferred, but it is not required.” It also credited trial counsel’s testimony that critical discussions took place directly with the Petitioner or with both the Petitioner and his father. The post- conviction court determines witness credibility, including the effect that a witness’s mistake on one point may have on the remainder of his testimony. We do not reweigh those determinations on appeal. See Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990); Arendall v. State, No. M2024-01190-CCA-R3-PC, 2025 WL 1430431, at *5, *8 (Tenn. Crim. App. May 19, 2025) (rejecting the petitioner’s claims of inadequate communication where the post-conviction court credited trial counsel’s testimony about his meetings and discussions with her and found that she offered no credible proof to the contrary), no perm. app. filed. Second, the Petitioner takes issue with how trial counsel communicated with him. He contends that trial counsel improperly relied on the Petitioner’s father as an intermediary during plea negotiations. He relies on the opinion of his standard-of-care expert that this practice fell below the standard of care reflected in Tennessee Supreme Court Rule 8, RPC 1.4. The post-conviction court credited the expert’s testimony and respected his opinions, but it disagreed with his conclusion that trial counsel failed to meet the standard of care. Where properly admissible under Tennessee Rule of Evidence 702, a legal expert’s opinion may inform a post-conviction court’s inquiry, but it does not, by itself, determine whether trial counsel’s performance was constitutionally deficient. Cf. Howell v. State, 185 S.W.3d 319, 338 (Tenn. 2006) (affirming exclusion of legal expert testimony in a post- conviction case where the testimony did not substantially assist the trier of fact). Professional standards of this kind “are guides to determining what is reasonable, but they are only guides.” Strickland, 466 U.S. at 688. The ultimate question is whether trial counsel’s performance was reasonable considering all the circumstances. See id. -8-  Considered in context, trial counsel’s use of the Petitioner’s father as a point of contact did not render his representation constitutionally deficient. The post-conviction court found that the Petitioner had moved away from Nashville and permitted his father to serve as a point of contact. It also found that neither the Petitioner nor his father claimed that trial counsel was unavailable or refused to meet with them. Although the court recognized that a lawyer’s communications with a third party, “even an engaged parent, cannot replace a lawyer’s duty to communicate with the client,” it credited trial counsel’s testimony that the Petitioner and counsel discussed decisions critical to strategy and plea negotiations directly. The evidence does not preponderate against those findings. Considering those facts under the governing constitutional standard, the expert’s contrary opinion does not establish deficient performance. In summary, the record supports the post-conviction court’s findings that trial counsel communicated directly with the Petitioner about the plea offers and that the Petitioner permitted his father to serve as a point of contact. Taking these circumstances together, we conclude that the Petitioner has not shown that trial counsel’s representation fell below an objective standard of reasonableness. B. A PPELLATE R EVIEW OF THE S UPPRESSION R ULING The Petitioner next argues that trial counsel rendered ineffective assistance in handling the adverse suppression ruling. He contends that trial counsel should have sought interlocutory review under Tennessee Rules of Appellate Procedure 9 or 10. According to the Petitioner, seeking immediate review would have changed the outcome regardless of whether the appeal succeeded. If successful, he asserts that suppression of the cell phone evidence would have led the State to offer more favorable plea terms. If unsuccessful, he asserts that he would have accepted one of the State’s existing offers. He separately contends that trial counsel should have advised him to plead guilty and reserve the suppression issue as a certified question of law. The State responds, among other things, that the Petitioner failed to establish prejudice because he did not show that an interlocutory appeal would have been granted and because trial counsel urged him to accept the State’s offer. We agree that the Petitioner has not established prejudice. As we explain below, the record does not establish a reasonable probability that seeking immediate review of the suppression ruling would have produced a different result. -9-  1. Background After the trial court denied the motion to suppress, trial counsel did not seek interlocutory review. Both of the State’s May 31 plea offers required the Petitioner to plead guilty to rape and aggravated sexual battery, and both contemplated community supervision for life. The Petitioner proposed instead that he plead guilty to three counts of the lesser-included offense of sexual battery. After consulting the victim, the State declined the counteroffer, reiterated its May 31 offers, and advised that those offers would be revoked after June 9, 2017. Trial counsel then informed the State that the Petitioner “would rather take his chances.” At the post-conviction hearing, the Petitioner’s standard-of-care expert opined that this court would have accepted an interlocutory appeal because it later agreed that the cell phone evidence should have been suppressed. He acknowledged, however, that he had never pursued such an appeal and had not researched what it takes to obtain one. The post-conviction court denied relief on this ground. It found that trial counsel’s decision not to seek an interlocutory appeal did not fall below the standard of competent representation. The court also found no prejudice because the suppression issue was not dispositive and significant video and image evidence from other devices remained. Finally, the court found that the Petitioner “received good advice but did not take it and decided instead to proceed to trial.” 2. Interlocutory Review Because a petitioner must establish both deficient performance and prejudice, a court need not address both prongs if the petitioner fails to establish either one. See Garcia, 425 S.W.3d at 257. We therefore begin with prejudice, which requires the Petitioner to show a reasonable probability that, but for trial counsel’s failure to seek an interlocutory appeal, the result of the proceeding would have been different. See Davidson, 453 S.W.3d at 393-94. The Petitioner’s theory that a successful interlocutory appeal would have resulted in a more favorable plea depends on several events occurring in sequence. First, he had to show a reasonable probability that he would have obtained permission for interlocutory review under Rule 9 or Rule 10. Second, he had to show that this court would have reversed the denial of his motion to suppress. Third, he had to show that the State, without the cell phone evidence, would have extended a more favorable offer involving an offense that did - 10 - not require community supervision for life. Finally, he had to show a reasonable probability that he would have accepted that offer and that the trial court would have approved its terms, resulting in a less severe conviction or sentence. See Stevens v. State, No. M2018-00530-CCA-R3-PC, 2020 WL 91837, at *9 (Tenn. Crim. App. Jan. 8, 2020), perm. app. denied (Tenn. Apr. 15, 2020). If any link in this chain fails, the Petitioner cannot establish a reasonable probability that the result of the proceeding would have been different. See id. The Petitioner’s theory fails at the first and third links. We address those links in turn before considering his alternative argument, which rests on the offers the State actually made. a. Permission for Interlocutory Appeal The first link requires the Petitioner to show that he would have obtained permission for interlocutory review. An interlocutory appeal “is an exception to the general rule that requires a final judgment before a party may appeal as of right.” State v. Gilley, 173 S.W.3d 1, 5 (Tenn. 2005) (citing Tenn. R. App. P. 3(d)). Because “interlocutory review of pretrial rulings can create piecemeal appellate litigation and the encouragement of delay [that] is fatal to the vindications of the criminal law,” such appeals are “disfavored.” Id. (citations and internal quotation marks omitted). Indeed, this court has recognized that the denial of a motion to suppress ordinarily is not appropriate for interlocutory review because the defendant retains the right to a direct appeal and thus suffers no irreparable injury. See State v. Williams, No. E2025-01399-CCA-R9-CD, 2025 WL 2888039, at *3 (Tenn. Crim. App. Oct. 10, 2025) (Order Denying Tenn. R. App. P. 9 Application), no perm. app. filed. A Rule 9 interlocutory appeal requires approval from both the trial court and the appellate court. Gilley, 173 S.W.3d at 4-5 (citing Tenn. R. App. P. 9(b), (c)). The party seeking review must first file and serve a motion in the trial court within thirty days after entry of the challenged order. See Tenn. R. App. P. 9(b). If the trial court grants permission, the appellate court then decides whether to grant the application. See id. Thus, a petitioner alleging ineffective assistance for failing to pursue a Rule 9 appeal must establish a reasonable probability that both courts would have permitted interlocutory review. See Gaddy v. State, No. M2018-01272-CCA-R3-PC, 2019 WL 4072453, at *4 (Tenn. Crim. App. Aug. 29, 2019), perm. app. denied (Tenn. Jan. 15, 2020). In deciding whether to grant permission, courts consider (1) the need to prevent irreparable injury; (2) the need to prevent needless, expensive, and protracted litigation; - 11 - and (3) the need to develop a uniform body of law. See Tenn. R. App. P. 9(a). In weighing these factors, courts consider, among other things, “the probability that review upon entry of final judgment will be ineffective,” whether and to what extent “the challenged order would be a basis for reversal upon entry of a final judgment,” and “whether an interlocutory appeal will result in a net reduction in the duration and expense of the litigation if the challenged order is reversed.” Id. Although Rule 9 does not require that the challenged order be dispositive of the case, the dispositive nature of the issue is an important consideration in deciding whether to grant an application. See State v. Scarborough, 201 S.W.3d 607, 612 n.2 (Tenn. 2006); Weems v. State, No. W1999-00033-CCA-R3-PC, 2000 WL 140462, at *2 (Tenn. Crim. App. Feb. 2, 2000), perm. app. denied (Tenn. June 19, 2000). In this case, the Petitioner offered no evidence addressing whether the trial court would have granted permission to seek interlocutory review. Indeed, his standard-of-care expert conceded that “[the trial court] might have said no, I’m not going to grant your Rule 9.” The record therefore does not establish a reasonable probability that the Petitioner would have obtained the trial court’s permission. The record likewise does not establish a reasonable probability that this court would have granted permission to appeal. Unlike the suppression issue in Scarborough, which was dispositive of another case pending against the defendant, the suppression issue here was not dispositive. Both the Petitioner’s standard-of-care expert and the post-conviction court recognized this fact. Reversing the suppression ruling therefore would not have ended the prosecution, and interlocutory review would have extended rather than reduced the litigation. See Tenn. R. App. P. 9(a); Williams, 2025 WL 2888039, at *3. Nor did the Petitioner face irreparable injury without immediate review because he retained the right to challenge the ruling on direct appeal, as he later did. See Banks, 2019 WL 4917164, at *21. The standard-of-care expert’s contrary opinion does not alter this conclusion. He believed that this court would have accepted an interlocutory appeal because we later agreed that the evidence should have been suppressed. But that reasoning measures the likelihood of interlocutory review by the eventual decision on the merits, rather than by the Rule 9 factors governing whether immediate review was appropriate. The expert also acknowledged that he had not researched the requirements for obtaining an interlocutory appeal. Nor has the Petitioner established prejudice based on trial counsel’s failure to seek an extraordinary appeal under Tennessee Rule of Appellate Procedure 10. Unlike Rule 9, - 12 - an extraordinary appeal under Rule 10 does not require the trial court’s permission. But such an appeal is available only “if the lower court has so far departed from the accepted and usual course of judicial proceedings as to require immediate review” or “if necessary for complete determination of the action on appeal as otherwise provided in these rules.” Tenn. R. App. P. 10(a). The Petitioner has not shown that immediate review was necessary under either standard, particularly because he retained the ability to challenge the suppression ruling on direct appeal. Nor has he offered proof establishing a reasonable probability that this court would have granted extraordinary review. We conclude that the Petitioner has not shown a reasonable probability that he would have obtained interlocutory review under either Rule 9 or Rule 10. Accordingly, this argument fails at the threshold. b. A More Favorable Plea Offer Even had an interlocutory appeal been successful, the Petitioner offered no proof that suppressing the cell phone evidence would have caused the State to propose more favorable plea terms. More importantly, the obstacle to an agreement was not simply the length of the sentence. As trial counsel explained to the prosecution in an email, the Petitioner objected to community supervision for life: “5 years off his sentence is nothing compared to a lifetime of community supervision.” Because rape and aggravated sexual battery carry community supervision for life as a matter of law, terms acceptable to the Petitioner would have required the State to permit a plea to a different offense. See Tenn. Code Ann. § 39-13-524(a) (2010). The question, then, is whether the record establishes a reasonable probability that the State would have permitted a plea to a different offense after suppression of the cell phone evidence. It does not. To the contrary, the State had already rejected such a proposal. When the Petitioner proposed pleading guilty to sexual battery, the State consulted the victim, declined the counteroffer, and reiterated its May 31 offers. The prosecutor did not testify at the post-conviction hearing, and no other witness testified that the State would have reconsidered its position had the cell phone evidence been suppressed. Moreover, as this court recognized on direct appeal, the State’s remaining evidence was substantial. Banks, 2019 WL 4917164, at *22. The post-conviction court likewise found that significant video and image evidence from other devices remained even without the images from the Petitioner’s cell phone. - 13 -  The only proof touching this issue came from the Petitioner’s father. He testified that, when he asked trial counsel what he would do if the Petitioner were his own son, trial counsel said that he “would preserve the right to appeal and go to trial” because, if the case were tried again, the State would “probably” deal with the Petitioner “differently, better.” This secondhand prediction does not carry the Petitioner’s burden. It concerned the State’s suspected approach after a retrial, not plea negotiations following an interlocutory ruling, and it does not show what the State actually would have done. Accordingly, the Petitioner has not shown a reasonable probability that the State would have extended a more favorable plea offer after suppression of the cell phone evidence. c. The State’s Alternative May 31 Plea Offers The Petitioner’s alternative theory begins from the opposite premise: that an interlocutory appeal would have been unsuccessful. He asserts that, following an unfavorable appellate ruling, he “would have absolutely taken a plea deal.” Unlike his first theory, this argument does not depend on the State extending a new or more favorable offer. Instead, it rests on the alternative offers the State actually made on May 31. The framework our supreme court adopted for ineffective-assistance claims arising from plea negotiations therefore governs this theory. Under that framework, a petitioner must show a reasonable probability that, but for counsel’s deficient representation, (1) he would have accepted the offer, (2) the prosecution would not have withdrawn it, and (3) the trial court would have accepted its terms, such that the resulting penalty would have been less severe than the one actually imposed. See Nesbit, 452 S.W.3d at 800-01. The Petitioner has not established the first element. He rejected the State’s offers after the trial court denied his motion to suppress, even though trial counsel advised him to accept a plea offer. The post-conviction court found that the Petitioner “received good advice but did not take it and decided instead to proceed to trial.” It also found that the Petitioner “understood a guilty plea would eliminate his ability to appeal the suppression issue.” The evidence does not preponderate against these findings. The Petitioner responds that he rejected the State’s offers to preserve his appeal. But preserving appellate review was not the only obstacle to a plea. Trial counsel testified that “the key was the lifetime community supervision,” and his contemporaneous email to the State expressed the same concern. Because an unsuccessful interlocutory appeal would not have changed the requirement of community supervision for life, we conclude that the Petitioner has not shown a reasonable probability that he would have accepted either offer. - 14 -  3. Certified Question Review The Petitioner offers one final theory for preserving appellate review of the suppression ruling. Rather than seeking review before trial under Rule 9 or Rule 10, he argues that trial counsel should have advised him to plead guilty and preserve the suppression issue for appeal as a certified question of law. According to the Petitioner, this procedure would have allowed him to accept a plea agreement without forfeiting appellate review of the suppression ruling. The State responds that the Petitioner could not have reserved the suppression issue as a certified question because the issue was not dispositive of the case. Rule 37 permits a defendant to reserve a certified question following a guilty plea only if, among other requirements, the defendant, the State, and the trial court are of the opinion that the question is “dispositive of the case.” Tenn. R. Crim. P. 37(b)(2)(A)(iv). The suppression issue did not satisfy this requirement. Even without the challenged cell phone evidence, the prosecution could proceed on substantial independent evidence. The suppression issue therefore could not have been validly reserved under Rule 37, and trial counsel’s representation was not deficient for failing to recommend or pursue such an appeal. In summary, the Petitioner has not established ineffective assistance of counsel based on trial counsel’s failure to seek interlocutory review or advise him to reserve the suppression issue as a certified question of law. He is not entitled to relief on this ground. C. FAILURE TO C ALL AN E XPERT W ITNESS TO T ESTIFY AT T RIAL Finally, the Petitioner argues that trial counsel was ineffective for failing to call Dr. Malcolm Spica, a defense expert, to testify at trial. He contends that Dr. Spica’s testimony would have supported his duress defense and likely influenced the jury’s verdict. The State responds that trial counsel made a strategic decision entitled to deference and that, in any event, the Petitioner cannot establish prejudice because Dr. Spica did not testify at the post-conviction hearing. We agree that the Petitioner has not established prejudice. Because the absence of prejudice is dispositive, we need not address whether trial counsel performed deficiently by declining to call Dr. Spica. See Garcia, 425 S.W.