Michael Deon Mills v. State of Tennessee ( 2016 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs October 25, 2016
MICHAEL DEON MILLS v. STATE OF TENNESSEE
Appeal from the Criminal Court for Knox County
No. 98950 Bobby R. McGee, Judge
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No. E2016-01544-CCA-R3-PC – Filed November 21, 2016
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Michael Deon Mills (“the Petitioner”) was convicted of two counts of especially
aggravated kidnapping, one count of especially aggravated robbery, and one count of
aggravated burglary by a Knox County jury. The trial court sentenced the Petitioner to an
effective sentence of twenty-five years with release eligibility after service of 100% of
the sentence in the Department of Correction. On appeal, this court affirmed the
Petitioner‟s convictions. The Petitioner filed a petition for post-conviction relief, which
the post-conviction court denied. The Petitioner argues on appeal that trial counsel‟s
performance was deficient and that he was prejudiced by the ineffective assistance of trial
counsel. On appeal, we affirm the post-conviction court‟s denial of relief to the
Petitioner.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and J. ROSS DYER, JJ., joined.
Douglas A. Trant, Knoxville, Tennessee, for the appellant, Michael Deon Mills.
Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Phillip H. Morton,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual and Procedural Background
Jury Trial
On direct appeal, this court summarized the testimony presented at trial as
follows:
[Co-defendant] [t]wenty-two-year-old Brandon Tarver testified that
the [Petitioner and co-defendant Kenneth Spencer] were his friends. At the
time of trial, he had known [the Petitioner] and [co-defendant Spencer]
three and ten years, respectively. About 6:00 p.m. on August 8, 2007, [co-
defendants] Tarver and Spencer went to [co-defendant] Tarver‟s father‟s
house on Apex Drive off Sutherland Avenue in Knoxville. [The Petitioner]
also went to the house. At some point, [co-defendant] Spencer went back
to his home off Magnolia Avenue. [The Petitioner] also left [co-defendant]
Tarver‟s father‟s home on Apex Drive. [Co-defendant] Tarver said that he
and a girl named Tiffany later met up with [co-defendant] Spencer at [co-
defendant] Spencer‟s house. At that point, [co-defendant] Tarver refused to
testify further, saying, “I have nothing else to say. I got my time. I wanna
do my time.”
Philip Lim testified that in August 2007, he lived in a two-story
home on Bradshaw Garden Drive. On the night of August 8, he was at
home with his then nineteen-year-old son, Shawn, and thirteen-year-old
daughter, Heidi. Shortly before midnight, Philip was standing in his living
room while watching television and drinking soup. Someone knocked open
the front door, and three or four people wearing bandanas over their faces
came into the house. Philip said a black male pointed a “long” gun at his
face and told him, “I will kill you. I will kill you.” A white male with an
aluminum baseball bat hit Philip a few times on his back. Philip ran into
the kitchen, and the man with the bat followed him. Philip said that the
men wanted to know if he had any drugs and that he told them, “No. I
don‟t have drugs. I don‟t even smoke.” Philip said he was “running
scared”; screamed, “Call 911. Call 911”; picked up a barstool; and threw it
at the man with the gun. He said that a second living room and his
children‟s bedrooms were in the basement and that he headed downstairs.
Philip testified that he stumbled on the steps to the basement and that
the man with the bat began beating him. Philip ran into Heidi‟s bedroom
and tried to hold the door closed, but the man overpowered him, came into
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the room, and hit him on the head and back with the bat. Philip fought with
the man for about five minutes and ran out of the room. The man followed
and continued to beat him, and Philip fell next to a couch in the basement
living room. The man told him to take off a gold bracelet he was wearing,
but Philip could not get the bracelet off because his thumb was swollen.
The man beat Philip with the bat, yanked the bracelet off his wrist, and told
him to take out his wallet. Philip did as instructed, and the man took about
sixty dollars out of the wallet. The man also pulled a telephone cord out of
the wall. Philip took a cellular telephone out of his pocket in order to dial
9-1-1, but the man broke it into two pieces.
Philip testified that the man “cornered” him under a piano and that
he told the man, “Please don‟t kill me. I‟ve got beautiful children.” The
man forced him to stay under the piano and did not leave him until the
police arrived. At that point, the man broke through the basement‟s sliding
glass door and ran outside. The police came into the house and took Philip
upstairs, where he saw his son. He said his head and his son‟s head were
bleeding. The police captured a black intruder and a white intruder still in
the house. Philip‟s son asked to see the two men but did not recognize
them. Paramedics took Philip to the University of Tennessee Hospital. His
thumb was broken, he could not raise his hand, and he had injuries to his
neck and back. He said that the man with the bat had hit him twenty or
thirty times, that his head was split open, and that he received staples in his
head. He was in extreme pain after the attack and went to physical therapy
for months. At the time of trial, he was still seeing his doctor for treatment
and was in counseling. He said that he did not own a gun or baseball bat
and that neither of those items had been in his home before the robbery.
On cross-examination, Philip testified that a briefcase containing
jewelry had been in his bedroom closet and that one of the men found the
briefcase and opened it. Philip‟s arms were bruised during the attack when
he held them up to protect his neck. He said that the intruders damaged a
couch and mattress, that they broke doors and windows, and that blood was
“everywhere.” The intruders caused eighteen to twenty thousand dollars[‟]
worth of damage to his house.
Shawn Lim testified that on the night of August 8, 2007, he was
downstairs and getting ready for bed. Suddenly, he heard his father upstairs
yelling, “[C]all 911, help.” Shawn was scared and did not know what was
going on. He ran upstairs and saw a tall black male with a bandana over his
face and holding a gun. Shawn grabbed the gun and struggled with the
man. He said he could not see his father but heard “other commotion” in
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the kitchen area. Suddenly, someone hit Shawn on the back of his head
with a baseball bat. He said he blacked out for a moment, fell over the
couch, and was beaten with the bat and the butt of the gun. He said two
men told him, “Don‟t try and be brave or anything, sit down, stay right
here.” While the men were with him, Shawn could hear his father
screaming downstairs. The man with the bat left, and the man with the gun
moved Shawn to a bathroom. Shawn grabbed a towel and held it to his
head. The man with the gun told Shawn to sit in the bathroom and stayed
with him until the police arrived. Shawn said that while he was in the
bathroom, he could see someone with a baseball bat walking “back and
forth,” searching the upstairs bedrooms. He said he could still hear his
father and a commotion downstairs.
Shawn testified that he heard the man with the bat alert the man with
the gun, that the two men tried to find a way out of the house, and that he
heard a bedroom window break. Shawn saw a police officer, and Philip
Lim came upstairs. The police began searching the house and found the
man with the bat and the man with the gun hiding in an upstairs bedroom.
The police brought them out of the room and took off their bandanas.
Shawn said that only one of the intruders was black, and he identified [the
Petitioner] in court as the black intruder with the gun. Regarding an in-
court identification of [co-defendant] Spencer, Shawn said that “it was dark
in the living room . . . , so I‟m not sure if he was the one that was in the
living room or the one downstairs that I didn‟t see.” He said that as a result
of the attack, he had a large cut on his head that had to be closed with
fifteen staples. He also had cuts and bruises on his body. He said he was in
extreme pain, took pain medication, and stayed in bed for about one week.
He said that the home invasion lasted about ten minutes and that he was
“out of it” when he talked with the police.
On cross-examination, Shawn said he saw two men during the attack
and “heard others.” Shawn said that while the man with the bat and the
man with the gun were upstairs with him, he could hear his father
downstairs yelling “like he was still getting beaten.”
The State recalled [co-defendant] Brandon Tarver, and his testimony
resumed as follows: On the evening of August 8, 2007, [co-defendants]
Tarver and Spencer drove [co-defendant] Spencer‟s dark green Toyota
Camry to [co-defendant] Tarver‟s father‟s house on Apex Drive. [Co-
defendant] Tarver called [the Petitioner] and told him to come over. [Co-
defendant] Tarver said that [the Petitioner] knew about a house “where
some guy lived that had some drugs and some money” and that they
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decided to ride by the house to see if the man was home. [Co-defendant]
Tarver, [the Petitioner], and [co-defendant] Spencer got into the Camry, and
Tiffany drove them to Bradshaw Garden. They saw cars in the home‟s
driveway, and [the Petitioner] told them the man was there.
[Co-defendant] Tarver said that Tiffany drove them back to his
father‟s house and that he put a twenty-gauge Remington pump shotgun
into the trunk of [co-defendant] Spencer‟s car. He said he could not
remember if the shotgun was loaded and did not know at the time that a
baseball bat also was in the trunk. Tiffany drove them back to Bradshaw
Garden and parked at the end of the street. [Co-defendant] Tarver, [the
Petitioner], and [co-defendant] Spencer got out of the car and walked to the
Lim house. [Co-defendant] Tarver said that [co-defendant] Spencer was
carrying the bat, that [the Petitioner] was carrying the gun, and that they
had the weapons in order to scare the occupants of the house. When they
arrived at the home, [co-defendant] Tarver kicked in the front door. [Co-
defendant] Spencer walked into the house first, followed by [the Petitioner]
and [co-defendant] Tarver, and confronted Philip Lim. Shawn Lim came
up behind his father and threw [the Petitioner] onto the couch, and [co-
defendant] Spencer hit Shawn with the bat. [Co-defendant] Spencer also
hit Philip with the bat, and Philip started screaming. [Co-defendant] Tarver
said his role was to find “the weed and the money,” that he walked into a
bedroom, and that he started searching “[t]o see what they had.” He found
a briefcase containing jewelry, and he put the jewelry in his pocket. He
said that [the Petitioner] was in the living room and that he did not see [co-
defendant] Spencer again.
[Co-defendant] Tarver testified that he heard Shawn Lim ask [the
Petitioner] for permission to get a towel. He heard the home‟s front door
open, and [the Petitioner] told him the police were there. [The Petitioner]
used the end of the gun to break a window, and [co-defendant] Tarver saw
police outside. He hid in a closet and [the Petitioner] hid under the bed, but
the police found them. He acknowledged telling an investigator that he had
realized as soon as they entered the Lim house that they had broken into the
wrong home. He also acknowledged that they continued with their plan.
Later, [co-defendant] Tarver took the police to [co-defendant] Spencer‟s
house off Magnolia Avenue, but [co-defendant] Spencer was not there.
[Co-defendant] Tarver used a police cellular telephone to call Tiffany, and
she told him [co-defendant] Spencer was at [co-defendant] Tarver‟s father‟s
house on Apex Drive. [Co-defendant] Tarver explained that he had stopped
testifying earlier because “[t]hat‟s two of my best friends [sitting] over
there.” He said he pled guilty in this case in return for an eight-year
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sentence. He acknowledged that no one in the district attorney‟s office had
threatened him and that he did not have to testify.
On cross-examination, [co-defendant] Tarver testified that he and
Tiffany had been dating and that he never told the police she was involved.
He acknowledged that after he refused to testify earlier, he spoke with his
attorney and that his attorney reminded him he was supposed to cooperate
with the district attorney‟s office as part of his plea agreement. He said he
decided to continue testifying because he would “get some more time” if he
did not cooperate.
Heidi Lim testified that on the night of August 8, 2007, she was
downstairs in her bedroom, which was next to Shawn‟s bedroom, and heard
her father upstairs “yelling help, call 911.” She grabbed a cordless
telephone and went into Shawn‟s bedroom, but Shawn was not there. Heidi
heard yelling upstairs, but she did not hear Shawn. She dialed 9-1-1 and
got down on the floor, trying to hide. The State played Heidi‟s 911 call for
the jury. During the call, which lasted about seven minutes, Heidi told the
operator that someone was in her house and that she was hiding in her
brother‟s bedroom. She also told the operator that she could hear someone
saying “get on the ground” and that she thought her father had been hurt.
Heidi testified that when the police arrived, she ran upstairs. Her father and
brother were in the bathroom, and she saw Shawn holding a towel to his
bleeding head. She said that her family owned a mixed-breed dog that
stayed outside in a fenced yard, that she later found the dog hiding in a
basement bathroom, and that his eye was bleeding.
Officer David Sanders of the Knoxville Police Department testified
that on August 8, 2007, he responded to a home invasion call on Bradshaw
Garden Drive. According to the call, a young woman was in the basement
of the home, and the intruders were still in the house. Officer Sanders
turned off his patrol car‟s lights and parked a couple of houses down from
the Lim house. Officer Pete Franzen also arrived, and the two officers
walked to the home. Officer Sanders set up a perimeter around the house
while Officer Franzen went to the front of the house. Officer Sanders heard
the front door slam. A few moments later, a window broke on the side of
the house where he was standing. He watched the window, but no one
climbed out. Other officers arrived, and Officer Sanders entered the
basement through a broken sliding glass door. He checked each room in
the basement to make sure no suspects were hiding and found Heidi Lim in
a bedroom. He heard officers yelling upstairs, went upstairs, and saw
officers taking a white male into custody. The officers were removing the
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male from the bedroom where Officer Sanders had heard the window break
earlier. Officers also took a young black male, who was hiding between the
bedroom wall and the bed, into custody. A loaded shotgun was lying on the
bed. Officer Sanders took the white male, who was [co-defendant] Tarver,
outside; patted him down; and found jewelry in his pockets. He put [co-
defendant] Tarver into his patrol car.
...
On cross-examination, Officer Sanders acknowledged that when he
first arrived at the Lim home, he thought the suspects had a shotgun and a
baseball bat. When officers arrested [the Petitioner], he was not wearing a
bandana over his face. The bat found at the home on Apex Drive was
wood, not aluminum, and Officer Sanders could not see any traces of blood
on it.
Dan Crenshaw, a senior evidence technician for the Knoxville Police
Department, testified that he confiscated the items found at the Apex Drive
residence. Partial, but unidentifiable, fingerprints were on the bat and the
shotgun. Crenshaw also checked the shotgun found at the Lim residence
for fingerprints but did not find any identifiable prints.
Latonia Mills, [the Petitioner‟s] mother, testified for him that he was
a good child and that she never had any problems with him as a juvenile.
She said she did not know [co-defendants] Tarver or Spencer.
State v. Michael Deon Mills and Kenneth Allen Spencer, No. E2009-01708-CCA-R3-
CD, 2011 Tenn. Crim. App. LEXIS 303 at *2-15 (Tenn. Crim. App. Apr. 21, 2011),
perm. app. denied (Tenn. July 14, 2011). The jury found the Petitioner guilty of
especially aggravated kidnapping, especially aggravated robbery, and aggravated
burglary. Id. at *15. The trial court sentenced the Petitioner to “twenty-five years to be
served at one hundred percent in confinement for each of the Class A felony convictions
and to six years as Range I, standard offender[] for the aggravated burglary conviction.
The sentences were to run concurrently for effective sentences of twenty-five years.” Id.
This court affirmed the Petitioner‟s convictions on direct appeal, and our supreme court
denied further review. Id. at 37.
Post-Conviction Hearing
The Petitioner filed a timely petition for post-conviction relief. At the post-
conviction hearing, Latonya Mills testified that she was the Petitioner‟s mother and that
the Petitioner has had ADHD since he was a child. Ms. Mills testified that ADHD affects
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the Petitioner because “you can talk directly to him, but he is not understanding nothing
[sic] that you say to him.” Ms. Mills stated that she attended three or four meetings
between the Petitioner and trial counsel and that trial counsel told the Petitioner that he
would receive a fifteen-year sentence with twenty percent release eligibility. Further,
Ms. Mills testified that trial counsel never discussed the potential sentence that the
Petitioner could receive if he chose to proceed to trial and was found guilty.
On cross-examination, Ms. Mills testified that the Petitioner asked her to help him
hire an attorney to represent him shortly after he was arrested for the underlying charges.
Ms. Mills stated that she hired an attorney to represent the Petitioner during the
preliminary hearing, and the attorney advised the Petitioner to accept a plea offer from
the State for a twelve-year sentence with twenty percent release eligibility. Ms. Mills and
the Petitioner were dissatisfied with this attorney‟s representation, so they hired trial
counsel. On redirect examination, Ms. Mills stated that trial counsel never told the
Petitioner that he might receive a sentence of twenty-five years with a one-hundred
percent release eligibility.
The Petitioner testified that he has “been in special ed [sic] [his] whole life” and
has difficulties speaking and writing. The Petitioner stated that he signed the plea
agreement for twelve years with thirty percent release eligibility and was released on
bond before giving a plea colloquy in criminal court. However, the Petitioner‟s father
“felt like [the Petitioner] should get a second opinion from another attorney because he
felt like it was too much time.” When the Petitioner and his father met with trial counsel,
she informed them that the plea offer of twelve years was not a good deal. The Petitioner
testified that he did not accept the plea offer of twelve years because trial counsel advised
him not to take it. The Petitioner stated that, if trial counsel had not advised against
taking the plea offer of twelve years, he would have accepted the plea offer. The
Petitioner testified that trial counsel never discussed his case with him and only called
him to ask when he would be making a payment to her. The Petitioner stated that trial
counsel never advised him that he could receive a sentence of twenty-five years with
release eligibility after service of 100% of the sentence, and he was unaware that he could
receive that sentence until he was sentenced. The Petitioner also stated that he “never
wanted to go to trial” and that trial counsel never discussed proceeding to trial with him
until two days before his trial.
The Petitioner testified that, at his meeting with trial counsel two days before trial,
trial counsel told the Petitioner what he had been charged with but informed the
Petitioner that “the kidnapping charges was [sic] going to get dismissed when [the
Petitioner] go[t] to court” because the kidnapping was not a separate event from the
robbery. The Petitioner stated that trial counsel advised him that if he was found guilty
of the robbery charge then he could receive a maximum sentence of fifteen years with
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thirty percent release eligibility. When the Petitioner arrived in court for his trial, trial
counsel informed him that the State had withdrawn the previous plea offer. Additionally,
the Petitioner testified that trial counsel never discussed requesting a jury instruction on
accomplice testimony with him, and trial counsel did not provide the Petitioner with his
discovery materials.
Trial counsel testified that she had practiced law in Tennessee since 1993 and that
part of her practice included criminal defense. Trial counsel stated that, after the
Petitioner and his family terminated their representation with Mr. Whalen, she agreed to
represent the Petitioner. At that point, trial counsel learned that the State had offered the
Petitioner a plea offer for a twelve-year sentence with thirty percent release eligibility,
but the Petitioner did not want to plead guilty. Trial counsel informed the Petitioner that
his only options were to accept a plea offer or proceed to trial, but trial counsel testified
that the Petitioner was “adamant” about not pleading guilty. Trial counsel stated that she
“wasn‟t even authorized to do any negotiations for [the Petitioner] because he said he was
not going to plea.” Trial counsel testified that after she was retained and the Petitioner
was arraigned she looked at the Petitioner‟s general sessions warrants to determine the
Petitioner‟s charges. Trial counsel stated that she “did legal research” to determine the
sentencing ranges for the Petitioner‟s charges. Trial counsel informed the Petitioner that
he could receive a sentence between fifteen and twenty-five years with one-hundred
percent release eligibility for the especially aggravated robbery charge. Trial counsel
stated that either the Petitioner‟s mother or father or both were present when she met with
the Petitioner to explain the possible sentences. Trial counsel stated that she “never
promised [the Petitioner] anything.” Because the Petitioner informed trial counsel that he
did not want to plead guilty and wanted to proceed to trial, trial counsel prepared for trial.
On cross-examination, trial counsel stated that she did not discuss with the
Petitioner the possibility of pleading guilty to the robbery charge and proceeding to trial
on the kidnapping charge because the Petitioner “did not want to plea at all.” The
following exchange occurred between trial counsel and the Petitioner‟s post-conviction
counsel:
Q (Post-conviction counsel): Why didn‟t you request an accomplice jury
instruction?
A (trial counsel): An accomplice? Because [the Petitioner] was found in
the house. And I represented him.
Q: Was [co-defendant] Brandon Tarver an accomplice?
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…
A: He was perhaps an accomplice, yes.
The post-conviction court found that trial counsel “acknowledged that [co-
defendant] Tarver could be considered an accomplice and agreed that she did not request
a jury instruction on accomplice testimony.” The post-conviction court found that the
circumstances of the case “provided adequate corroboration” of [co-defendant] Tarver‟s
testimony and therefore an instruction on accomplice testimony was not necessary. The
post-conviction court found that the Petitioner had failed to prove by clear and
convincing evidence that trial counsel‟s failure to request the instruction had prejudiced
him and denied relief to the Petitioner on this issue.
The post-conviction court found trial counsel‟s testimony regarding her meetings
with the Petitioner and the depth of her discussion with him regarding plea offers and
potential sentences credible. The post-conviction court also found that the Petitioner had
failed to prove by clear and convincing evidence that “trial counsel was deficient at all
with respect to communication with her client, trial preparation or plea bargaining[]” and
denied relief to the Petitioner on this ground, as well. This timely appeal followed.
II. Analysis
On appeal, the Petitioner argues that trial counsel was ineffective in failing to
advise him about the potential consequences of proceeding to trial; specifically, the
Petitioner argues trial counsel was ineffective by informing him that the kidnapping
charge would be dismissed and by telling him that the maximum sentence he could
receive was fifteen years with thirty percent release eligibility. The Petitioner also
contends that trial counsel was ineffective in failing to request a jury instruction on
accomplice testimony and that “[h]e was prejudiced by the jury never knowing that [co-
defendant] . . . Tarver‟s testimony must be corroborated.” The Petitioner asserts trial
counsel‟s failure to request and the trial court‟s failure to issue a jury instruction on
accomplice testimony constitutes reversible error and deprived the Petitioner of due
process. The State responds that trial counsel‟s performance regarding communications
with the Petitioner was not deficient and that the Petitioner has not shown that he was
prejudiced by trial counsel‟s advice or her failure to request a jury instruction on
accomplice testimony.
Standard of Review
In order to prevail on a petition for post-conviction relief, a petitioner must prove
all factual allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828,
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830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and
fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Appellate courts are bound
by the post-conviction court‟s factual findings unless the evidence preponderates against
such findings. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015). When reviewing
the post-conviction court‟s factual findings, this court does not reweigh the evidence or
substitute its own inferences for those drawn by the post-conviction court. Id.; Fields, 40
S.W.3d at 456 (citing Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). Additionally,
“questions concerning the credibility of the witnesses, the weight and value to be given
their testimony, and the factual issues raised by the evidence are to be resolved by the
[post-conviction court].” Fields, 40 S.W.3d at 456 (citing Henley, 960 S.W.2d at 579);
see also Kendrick, 454 S.W.3d at 457. The trial court‟s conclusions of law and
application of the law to factual findings are reviewed de novo with no presumption of
correctness. Kendrick, 454 S.W.3d at 457.
Ineffective Assistance of Counsel
The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.
art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel,
a petitioner must prove: (1) that counsel‟s performance was deficient; and (2) that the
deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);
see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that the same
standard for ineffective assistance of counsel applies in both federal and Tennessee
cases). Both factors must be proven in order for the court to grant post-conviction relief.
Strickland, 466 U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State, 938 S.W.2d 363,
370 (Tenn. 1996). Accordingly, if we determine that either factor is not satisfied, there is
no need to consider the other factor. Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007)
(citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)). Additionally, review of
counsel‟s performance “requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel‟s challenged conduct,
and to evaluate the conduct from counsel‟s perspective at the time.” Strickland, 466 U.S.
at 689; see also Henley, 960 S.W.2d at 579. We will not second-guess a reasonable trial
strategy, and we will not grant relief based on a sound, yet ultimately unsuccessful,
tactical decision. Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).
As to the first prong of the Strickland analysis, “counsel‟s performance is effective
if the advice given or the services rendered are within the range of competence demanded
of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that
counsel was deficient, the petitioner must demonstrate “that counsel‟s acts or omissions
were so serious as to fall below an objective standard of reasonableness under prevailing
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professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see
also Baxter, 523 S.W.2d at 936.
Even if counsel‟s performance is deficient, the deficiency must have resulted in
prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong
of the Strickland analysis, the petitioner “must show that there is a reasonable probability
that, but for counsel‟s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks
omitted).
Failure to Communicate Potential Results of Trial
In support of his argument, the Petitioner testified that he would have accepted the
State‟s plea offer of a twelve-year sentence with thirty percent release eligibility if trial
counsel had not advised against accepting the offer. The Petitioner also stated that trial
counsel never advised him that he could receive a twenty-five year sentence with release
eligibility after service of 100% of the sentence if he proceeded to trial. Trial counsel
testified that the Petitioner “adamantly” told her that he did not want to plead guilty and
that the Petitioner did not authorize her to negotiate with the State for a plea offer. Trial
counsel also testified that she informed the Petitioner of all the possible sentencing ranges
for the crimes that he was charged with committing. In particular, trial counsel testified
that she informed the Petitioner that he could receive a sentence between fifteen and
twenty-five years with release eligibility after service of 100% of the sentence. The post-
conviction court found trial counsel to be credible and found that the Petitioner had failed
to prove by clear and convincing evidence that “trial counsel was deficient at all with
respect to communication with her client, trial preparation or plea bargaining.” The
evidence in the record does not preponderate against the post-conviction court‟s findings.
Therefore, we conclude that the Petitioner has failed to establish that trial counsel was
deficient in failing to communicate to him the possible consequences of proceeding to
trial. The Petitioner is not entitled to relief on this ground.
Failure to Request Accomplice Jury Instruction
In support of his argument that trial counsel was ineffective for failing to request a
jury instruction on accomplice testimony, the Petitioner testified that trial counsel never
discussed requesting a jury instruction on accomplice testimony with him. Trial counsel
testified that she did not request a jury instruction on accomplice testimony because “[the
Petitioner] was found in the house[,]” but trial counsel stated that co-defendant Tarver
“was perhaps an accomplice.” The post-conviction court found that the circumstances of
the case “provided adequate corroboration” of co-defendant Tarver‟s testimony, and
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therefore, an instruction on accomplice testimony was not necessary. The post-
conviction court further found that the Petitioner had failed to prove by clear and
convincing evidence that trial counsel‟s failure to request the instruction had prejudiced
him.
The evidence shows that trial counsel was deficient in failing to request an
accomplice testimony jury instruction. “If the facts about the witness‟ participation in the
crime are clear and undisputed, the trial court should determine as a matter of law
whether the witness was an accomplice.” State v. Robinson, 239 S.W.3d 211, 225 (Tenn.
Crim. App. 2006) (citing State v. Allen, 976 S.W.2d 661, 666 (Tenn. Crim. App. 1997)).
“However, if the facts are disputed or subject to different inferences, the jury should
determine as a question of fact whether the witness was an accomplice.” Id. (citing State
v. Anderson, 985 S.W.2d 9, 16 (Tenn. Crim. App. 1997)). Here, the facts regarding co-
defendant Tarver‟s participation in the crime are clear and undisputed. Additionally, the
post-conviction court found that trial counsel acknowledged that co-defendant Tarver was
an accomplice. Therefore, trial counsel should have requested that the trial court
determine as a matter of law whether co-defendant Tarver was an accomplice and that the
trial court instruct the jury on accomplice testimony. See Ronnell Leberry v. State, No.
M2007-01813-CCA-R3-PC, 2009 WL 112579, at *5 (Tenn. Crim. App. Jan, 14, 2009)
(counsel was deficient in failing to request jury instruction on accomplice testimony
when the proof at trial established that a witness was an accomplice), perm. app. denied
(Tenn. June 15, 2009); see also George Arthur Lee Smith v. State, No. E2010-00488-
CCA-R3-PC, 2012 WL 260022, at *24 (Tenn. Crim. App. Jan. 30, 2012) (holding that
trial counsel was deficient in failing to request a jury instruction on accomplice
testimony), perm. app. denied (Tenn. June 25, 2012). However, the Petitioner is not
entitled to relief because he failed to establish that he was prejudiced by trial counsel‟s
failure to request a jury instruction on accomplice testimony.
We agree with the post-conviction court that the Petitioner has failed to establish
prejudice. The police officers found the Petitioner hiding in the victims‟ house when
they apprehended him. Additionally, the victims identified the Petitioner as one of their
assailants. The Petitioner has not established on appeal how a jury instruction on
accomplice testimony would have affected his trial, besides alleging that he was
prejudiced because the jury did not know that co-defendant Tarver‟s testimony should
have been corroborated. The Petitioner has failed to prove that he was prejudiced by trial
counsel‟s failure to request a jury instruction on accomplice testimony. See Chico Lopez
Chigano v. State, No. 03C01-9602-CR-00061, 1997 WL 105002, at *2 (Tenn. Crim.
App. Mar. 11, 1997) (“[I]n order for the appellant to prevail in this collateral attack, the
proof must establish that had the questioned accomplice instruction been given to the
jury, there is a „reasonable probability‟ that the appellant would have been acquitted[]”),
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perm. app. denied (Tenn. June 30, 1997). The Petitioner is not entitled to relief on this
ground.
Additionally, the Petitioner argues that trial counsel‟s failure to request a jury
instruction on accomplice testimony and the trial court‟s failure to instruct the jury on
accomplice testimony deprived him of due process and constituted reversible error.
Under the Post-Conviction Procedure Act:
A ground for relief is waived if the petitioner personally or through an
attorney failed to present it for determination in any proceeding before a
court of competent jurisdiction in which the ground could have been
presented unless: (1) The claim for relief is based upon a constitutional
right not recognized as existing at the time of trial if either the federal or
state constitution requires retroactive application of that right; or (2) The
failure to present the ground was the result of state action in violation of the
federal or state constitution.
Tenn. Code Ann. § 40-30-106(g); see Cauthern v. State, 145 S.W.3d 571, 599 (Tenn.
Crim. App. 2004); Black v. State, 794 S.W.2d 752, 756 (Tenn. Crim. App. 1990). In his
petition for post-conviction relief, as amended, the Petitioner did not allege that trial
counsel‟s failure to request a jury instruction and the trial court‟s failure to instruct the
jury on accomplice testimony deprived him of his due process rights under the Fifth and
Fourteenth Amendments of the U.S. Constitution and Article I Section 8 of the Tennessee
Constitution and constituted reversible error. The Petitioner‟s claim for relief on this
ground is not based upon “a constitutional right not recognized as existing at the time of
trial,” and the Petitioner does not allege that his failure to present this ground for relief
was the result of state action. Therefore, this issue is waived.
III. Conclusion
For the aforementioned reasons, the judgment of the post-conviction court is
affirmed.
____________________________________
ROBERT L. HOLLOWAY, JR., JUDGE
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