        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                                September 1, 2009 Session

MONTEA WILSON (A.K.A. MARCUS FLOYD) v. STATE OF TENNESSEE

               Direct Appeal from the Criminal Court for Shelby County
                      No. P-27290   James C. Beasley, Jr., Judge


              No. W2008-02439-CCA-R3-PC - Filed September 30, 2010


The petitioner, Montea Wilson, appeals from the Criminal Court of Shelby County’s denial
in part of his petition for post-conviction relief and simultaneous order of a delayed appeal.
After a hearing, the post-conviction court determined that appellate counsel was ineffective
in failing to “protect[] the petitioner’s right to litigate the trial court’s failure to properly
instruct the jury on [second degree murder as a lesser included offense of felony murder] by
raising that point in the motion for new trial” and granted a delayed appeal. The post-
conviction court further determined that trial counsel were effective in their representation
of petitioner and, at the time of the petitioner’s trial, had no obligation to request second
degree murder as a lesser included offense to felony murder. In this appeal, the Petitioner
argues that the post-conviction court erred by not setting aside his conviction for felony
murder and granting a new trial because (1) trial counsel was ineffective for failing to request
an instruction on second degree murder and for failing to allege in the motion for new trial
that the trial court erred by not instructing the jury on second degree murder as a lesser
included offense; and (2) appellate counsel was ineffective for failing to argue on direct
appeal that the trial court’s failure to instruct the jury on second degree murder as a lesser
included offense constituted plain error. For the reasons set forth within this opinion, we
reverse the post-conviction court’s determination that trial counsel provided effective
assistance of counsel, vacate the petitioner’s conviction, and remand for a new trial. In
regard to the petitioner’s delayed appeal, our decision pertaining to trial counsel’s
performance renders it moot.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court
                             Reversed and Remanded

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which D AVID H. W ELLES
and A LAN E. G LENN, JJ., joined.

Lance Chism, Memphis, Tennessee, for the Petitioner-Appellant, Montea Wilson.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Betsy Carnesale, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                             OPINION

       In 2000, the petitioner was convicted by a jury of felony murder and attempted
especially aggravated robbery.1 The trial court merged the attempted especially aggravated
robbery conviction into the felony murder conviction and imposed a sentence of life
imprisonment without the possibility of parole. On direct appeal, this court affirmed the
conviction. See State v. Montea Wilson, No. W2000-00748-CCA-R3-CD, 2002 WL 925255,
at *1 (Tenn. Crim. App., at Jackson, May 3, 2002).

       Although lengthy, the facts of the underlying convictions, as outlined by this court in
the petitioner’s direct appeal, are significant to our disposition:

               On December 2, 1997, there was an attempted armed robbery at Ace
        Check Cashing on Getwell Road in Memphis. At trial, the state submitted the
        prior sworn testimony of Janice Hogue, the Ace Cash Express Director of
        Security and Facility Management, who was employed in the corporate office.
        Ms. Hogue’s testimony established that Ace Cash Express, a nationwide
        business with branches providing check cashing and money order services,
        generally used armored cars to deliver cash to each branch. The policy was to
        permit each branch to maintain a maximum level of cash on the premises and,
        when that level was reached, employees were required to request special
        armored car pick-up services. At the end of each work day, any cash on hand
        was to be placed in a safe and the alarm activated. There were no security
        cameras. Ms. Hogue’s testimony was that the victim, Cecil Wayne Goldman,
        who managed the branch located on Getwell Road, set the alarm system at
        6:47 p.m. and had 90 seconds to exit the building. The branch had
        approximately $27,000 in cash at closing, an unusually large amount.

               Shirley Smith testified that on the evening of the offenses, she was
        entering the Wendy’s restaurant on Getwell when she heard several individuals
        arguing loudly at Ace Check Cashing next door. She saw two young black
        men with the victim in front of the business and overheard one of the black
        men say, “You dumb ass. . . .” There were three gunshots and the victim fell


       1
         The record does not include a copy of the judgment forms. This information was deduced from the
petitioner’s prior appeals before this court.

                                                  -2-
to the ground. The black men left the scene on foot, crossing through the
Wendy’s parking lot towards the Greenwich Square apartments. The victim,
who was carrying papers and office supplies in a cardboard box, had been shot
and was bleeding. Ms. Smith recalled the gunman was wearing a dark blue
jacket.

       Dr. Thomas Deering performed an autopsy on the victim. He testified
that the victim died of multiple gunshot wounds. A shot to the abdomen,
which struck the victim’s aorta, would have been fatal and, according to Dr.
Deering, caused a loss of consciousness within four to five minutes. Although
Dr. Deering could not determine the number of bullets that may have been
involved in the shooting, he found four entrance wounds and four exit wounds.

        Officer Cham Payne of the Memphis Police Department Crime Scene
Unit processed the scene. He testified that he and other unit officers found a
set of keys, blood on the surrounding concrete, three .380 bullet casings, and
one spent bullet. Officer Payne estimated that the Wendy’s restaurant, where
Ms. Smith witnessed the attack, was 100 yards from the scene. He testified
that the shell casings were not checked for fingerprints, explaining that
semi-automatic weapons slide the bullets into the magazine, typically
destroying any fingerprints. The officer stated that the heat generated by the
firing of a weapon also obliterates fingerprints.

       Three days after the shooting, Officer Mark Rewalt, also of the
Memphis Police Department Crime Scene Unit, he [sic] recovered an unloaded
.380 semi-automatic pistol from a trash can at a bus stop in front of Clark
Towers on Poplar Street. The gun had been placed in a bag.

        Quiana Payne, who lived in the Greenwich Square apartments and
considered the defendant to be her boyfriend, testified that on the evening of
the murder, she contacted the defendant on his cellular telephone. He
responded that he was “taking care of business” and would call back, then
immediately hung up. Three days later, Ms. Payne saw the defendant at the
residence of Anita Hunter, where he lived. She recalled that the defendant
packed clothes and a black-handled .380 semi-automatic pistol into a gym bag.
Later, when she learned of the defendant’s involvement in the victim’s murder,
she returned the bag to Ms. Hunter’s residence. Ms. Payne also identified the
.380 pistol recovered by Officer Rewalt as that of the defendant. She stated
that the defendant was driving a burgundy Mazda 929.




                                     -3-
       During cross-examination by the defense, Ms. Payne acknowledged that
she met the defendant through her past employment as an entertainer at the
Pure Passion club. She testified that she learned after the murder that the
defendant was dating three other women at the same time he dated her. Ms.
Payne stated that she had called the defendant at exactly 6:53 p.m. on the date
of the shooting, maintaining that she recalled the time because it was so
unusual for him to hang up on her.

       Officer Bryant G. Jennings, a member of the Memphis Police
Department Crime Scene Unit, executed a search warrant at the apartment
shared by Anita Hunter and the defendant. He stated that officers seized a
small safe, a small piece of black cloth with cut-out holes, and a pair of black
gloves.

       Don Carman, a specialist in forensic firearms identification with the
TBI Crime Laboratory, examined a black-handled pistol found by officers in
a gym bag in the defendant’s apartment. He described the weapon as a .380
semi-automatic manufactured by Davis Industries. The magazine held five
bullets. Agent Carman stated that unless the gun jammed, it would eject shell
casings when fired. He was unable to connect any of the shell casings found
at the scene to the black-handled Davis .380. Agent Carman, who also
examined the Morrison .380 semi-automatic recovered from the bus station
trash can, testified that while shell casings ejected by the gun had similar
markings to those recovered at the scene, the quality of the markings was
insufficient for him to reach any definite conclusions. He affirmatively
concluded that the Morrison .380 had fired the spent bullet found at the murder
scene.

        Darius Bowles, indicted for the same offenses as the defendant, testified
that he first met the defendant, whom he also knew as “LA,” in December of
1997 through his cousin, Javon Webster. He stated that on the day of the
murder, the defendant, accompanied by Webster and Vincent Broddy, picked
him up in a maroon Honda and drove around for approximately two hours
before arriving at the defendant’s apartment in Greenwich Square at
approximately 6:00 p.m. He testified that the defendant, who claimed to be a
member of the International Black Mafia, planned the robbery of the Ace
Check Cashing, arranged everyone’s participation, and discussed a four-way
split of the proceeds. Bowles stated that the defendant provided him and
Webster with weapons, instructing him to be a “look-out” for Webster, who
was to apprehend the victim. He claimed that the defendant developed a plan
whereby Webster was to confront the victim outside, return him to the store,


                                       -4-
and force the surrender of the cash. Bowles recalled that the defendant
believed they could recover $50,000 to $75,000 in cash. He identified the
Morrison .380 recovered from the trash can by Officer Rewalt as the one given
to Webster and the black-handled .380 as the gun he was provided.

      Javon Webster was convicted of felony murder and attempted especially
aggravated robbery as a result of these offenses. This court affirmed his
convictions on February 7, 2002. See State v. Javon Webster, No.
W2000-01912-CCA-R3-CD (Tenn. Crim. App., at Jackson, Feb. 7, 2002).

        According to Bowles, the men positioned themselves outside of the
store at 6:30 p.m. to wait on its closing. He testified that he and Webster were
stationed in bushes outside of Ace Check Cashing with Jasper Temple, who
lived in the Greenwich Square apartment complex and who had agreed to
participate in the robbery. Temple used a walkie-talkie to communicate with
the defendant and Broddy, who were located across the street. Bowles
testified that he was wearing a blue Adidas sweatshirt, gray jogging pants, and
black and white Air Jordan tennis shoes. The other members of the group
were generally wearing dark clothing. Bowles recalled that when the
defendant provided the code word “A-okay” over the walkie-talkie, Webster
ran to the door of Ace Check Cashing. Bowles, who followed Webster,
contended that the victim “started hollering,” panicked, and threw a box at
Webster. Webster wrestled briefly with the victim and, as Temple yelled,
“Shoot him,” shot three to four times. Bowles testified that after the shooting,
he ran through a field and the Wendy’s restaurant parking lot to the Greenwich
Square apartments. Afterward, the five men met at a green generator in the
complex, where he and Webster returned their guns to the defendant. Bowles
contended that he asked Webster why he shot the victim and Webster was
unable to explain. He estimated that the men waited for approximately 30
minutes before the defendant drove them home. The defendant said, “Just be
cool,” and informed him that he would telephone the next day. Bowles was
arrested three days later and showed police where to find the defendant. While
acknowledging that he had belonged to a gang, Bowles contended that he
committed the crimes for money and that they were not gang-related.

       During cross-examination, Bowles maintained that he had joined the
Crips gang in early 1997 and quit midway through the year. He denied that he
had ever achieved a rank in the gang or “thrown” gang signs. Bowles agreed,
however, that Webster, Broddy, and Temple were Crips. He admitted telling
police that his cousin, Webster, had stated that he intended to rob Ace Check
Cashing and invited him along. He also acknowledged that he initially lied to


                                      -5-
police by telling them that he did not know his cousin’s last name. Bowles
agreed that he did not mention Broddy in his first statement to police, but
denied that he had protected him out of gang allegiance. He testified that the
defendant, at the time of the offenses, was dressed in jeans, a silver coat, and
tennis shoes.

        Robert White, a patrol officer with the Memphis Police Department,
testified that he, Officer Sammie Ballard, and others arrested the defendant at
his girlfriend’s apartment in Greenwich Square. He testified that the defendant
was not there when they arrived, but later drove into the parking lot. Officer
White stated that when police approached, the defendant fled on foot. He was
finally apprehended on a stairway landing.

        Captain John A. Wilburn, who was a sergeant in the Memphis Police
Department homicide division at the time of the murder, testified that he took
a recorded statement from the defendant on December 11. When he learned
that the defendant wanted to talk, he checked him out of jail and transported
him to the homicide offices. After being advised of and waiving his Miranda
rights, the defendant gave the following statement:

              After I got back from Mississippi, me and [Broddy]
       drove into Greenwich Square apartments and I run into
       [Webster] and [Bowles], “[T]ip” and Billy all standing around
       outside in the back of the cove. We all were sitting out there
       talking for a second. Webster decided that they wanted to go
       and rob the check cashing place over there on Getwell.
       [Webster] asked if anybody had any units (guns). [Broddy] said,
       “Yeah, I got a .380.” I said, “Well, I got a gun too.” So,
       [Webster, Bowles], Billy and Tip decided they would go rob the
       check cashing place. They asked me if I would watch out for
       the police. [Bowles] had already had the walkie-talkie’s and we
       were playing with them outside.

               [Broddy] gave [Webster] his .380 and I had a .380 that I
       gave to [Bowles]. Billy went inside his house and put on some
       black clothes, [Broddy] had already had on some black (clothes),
       and Billy, [Webster, Bowles], Tip and [Broddy] walked down
       to the check cashing place. When they walked down there,
       [Bowles] had a walkie-talkie[;] [Broddy] had a walkie-talkie.
       [Broddy] and Billy were gon’ stand on the opposite side of the
       street, and Tip and [Webster] and [Bowles] were gon’ be in the


                                      -6-
       bushes, and I was gon’ ride up the street and see if I saw any
       police. If I saw the police, I was instructed to blow the horn.

              I rode up Getwell to Amoco gas station, turned around,
       I came back to the Greenwich Square apartments. Then I rode
       back up to the Amoco gas station. As I was riding back up to
       the Amoco gas station, I heard three (3) shots go off. When I
       looked over toward the check cashing place, I saw [Webster]
       struggling with the guy that was inside. . . . That’s when the guy
       had a box or something . . . I saw that fly up in the air. That’s
       when I heard the shots. I saw Webster shoot the guy three (3)
       times. My window was down, I heard the guy hollering for
       help, and he was screaming.

               I drove on down to American Way, made a left and went
       down to Lamar, came back up to Knight Arnold, made a left and
       came back around to Getwell. Went back to Greenwich Square
       apartments. That’s when they all came running back over there.
       That’s when [Bowles, Webster, Broddy], Billy and Tip came
       running back over there to the apartments. They came inside my
       sister’s apartment, and [Webster] said, “Man, I didn’t get no
       money. The guy was grabbing on me.” We sat around there and
       we talked for a couple more minutes. Everybody got scared. I
       went outside, me and [Broddy] were outside and security guards
       were telling us that they were looking for some guys dressed in
       black, for us to go in the house.

               Billy went home, Tip went home and I took [Webster]
       and [Bowles] home. [Webster] took the gun with him, the .380
       that he used. The other gun was left there at my sister’s
       apartment. [Bowles] took the walkie-talkie’s back to the guy
       that loaned them to him.

       Captain Wilburn executed a search warrant at the defendant’s apartment
on December 9, one week after the murder. During the search, he and other
officers seized a black bag containing a black jumpsuit and a smaller black bag
with the black-handled .380 inside.

       Memphis Police Department Officer Sammie Ballard, called as a
defense witness, testified that on the day following the murder, he and other
officers canvassed the scene, including Greenwich Square, looking for


                                      -7-
suspects and passing out Crime Stoppers cards. Officer Ballard recalled that
two days later, at approximately 9:00 a.m., police received information which
lead to the arrest of Webster and Bowles. Another tip led to a handgun in a
trash can on Poplar Street. Officer Ballard testified that when the defendant
was arrested, he gave them information implicating Webster and Bowles.

        Dr. Carl Nelson, who qualified as an expert on gang affiliation, testified
that he was employed by the Tennessee Department of Correction at the
Memphis Correction Center. He stated that he had interviewed the defendant
and that it was his opinion that the defendant was not a gang member.
According to Dr. Nelson, there is no gang known as the International Black
Mafia. He explained that the Crips originated in Los Angeles in approximately
1969 or 1970 and that the gang had moved eastward to sell illegal drugs. Dr.
Nelson described the Crips as having no national structure but being tightly
run at the local level, with fellow gang members referring to one another as
“cousins.” He stated that the Crips made a practice of blaming their crimes on
rival gang members or snitches that they were able to befriend. During
cross-examination by the state, Dr. Nelson conceded that the defendant had not
necessarily been falsely accused because he was implicated by gang members.
He also acknowledged that he did not confer with anyone involved in the
crime other than the defendant.

       Anita Hunter testified that at the time of the offenses, the defendant was
living with her in her Greenwich Square apartment. She stated that she and the
defendant were “friends” and acknowledged that the defendant had two to
three other girlfriends. Ms. Hunter recalled that when she returned home after
work at approximately 5:30 p.m. on the day of the murder, the defendant was
not there, but that he was acting normally when he returned at 9 or 9:30 p.m.
At approximately 10:30 p.m., she left for work and could not remember
whether the defendant was at the apartment when she returned the next
morning. Upon cross-examination by the state, she confirmed that on the date
of the murder, the defendant, pursuant to her request, was in the process of
moving out of her apartment.

        Denise Wright, who was dating the defendant in December of 1997,
testified that at that time, the defendant was living with Anita Hunter, whom
she believed to be his sister. She recalled that she visited that apartment on
five or ten occasions and would occasionally spend the night. Ms. Wright
testified that she had once seen the Morrison .380 police found in the Poplar
Street trash can. It was on a night stand in the den at the apartment. The
defendant and Broddy were the only others present. Ms. Wright claimed that


                                       -8-
on the day of the murder, the defendant was at her apartment from
approximately 5:00 or 5:30 p.m. until 9:00 p.m except for a period of ten or 15
minutes at 6:45 p.m. when he left after receiving a cellular telephone call or
page. Ms. Wright contended that because employees of the district attorney’s
office had tried to confuse her during pre-trial questioning, her statement
contained error regarding the timing of various events. She maintained that
her trial testimony was truthful.

       During cross-examination, Ms. Wright acknowledged that she had
reviewed her pre-trial statement and had not asked for corrections. She
claimed that the black-handled .380 found in the gym bag in the defendant’s
apartment was hers, as was the car the defendant was driving on the day of the
murder. She admitted that in her prior statement, she told authorities that the
defendant and Broddy had accompanied her to Mississippi on the day of the
murder to pick up her child, leaving at approximately 3:00 p.m. and returning
an hour and one-half later. Ms. Wright acknowledged that she told
investigators that she had loaned the defendant her car for the remainder of the
day and that he brought it back to her at approximately 8:00 p.m. She also
acknowledged that she had initially stated that she then drove Broddy and the
defendant home, drove back to her apartment briefly, and then returned to the
defendant’s apartment.

        The defendant, who was 28 years old at the time of trial, testified that
his real name was Marcus Montea Floyd. He acknowledged that he had been
convicted of theft in 1991, robbery twice in 1993, and criminal impersonation
in 1997. The defendant stated that in November and December of 1997, he
lived with Anita Hunter, with whom he had had a prior sexual relationship. He
acknowledged that during that time, he simultaneously dated several women
without advising any of them of his multiple relationships. He and Ms. Hunter
referred to one another as “brother” and “sister.” The defendant testified that
at the time of the offenses, he had known Vincent Broddy for approximately
one month and the remainder of those involved for a matter of weeks. He
maintained that the gun used by Webster belonged to Broddy and that the one
used by Bowles belonged to Denise Wright. The defendant stated that on the
day of the murder, he awakened at 5:15 or 5:30 a.m. to call in to work because
he was not feeling well. He claimed that he then drove Denise Wright to her
residence and returned to his apartment to sleep. The defendant testified that
at approximately 11:30 a.m., Broddy, Webster, and Bowles arrived at his
apartment and asked whether he still had the gun belonging to Ms. Wright.
Contending that he was not in a gang and had never heard of the International
Black Mafia, he accused Broddy, Webster, Bowles, and Temple of being


                                      -9-
members of the Crips gang. The defendant claimed that he gave the gun to
Bowles without asking the three men their intentions and that the men left his
apartment at approximately 12:30 p.m. He stated that he remained at his
apartment until returning to Ms. Wright’s residence at approximately 5:00 p.m.
The defendant stated that he stayed at Ms. Wright’s for two to three hours
before leaving for ten to 15 minutes after receiving multiple pages from
Quiana Payne. He explained that he went to a local store to purchase
cigarettes and call Ms. Payne and then returned to Ms. Wright’s apartment
where he watched television for the remainder of the evening.

        The defendant testified that during the next two days, he saw police
officers canvassing the area, passing out fliers and Crime Stoppers
information. He stated that three days after the murder, he called Crime
Stoppers and identified Webster and Bowles as the assailants. The defendant
contended that he would not have called Crime Stoppers had he committed the
crimes. He claimed that after conversing with Officer Ballard several times
that day, he acquired the Morrison .380 from Broddy, wrapped it in a plastic
bag, and placed it in a garbage can on Poplar for police. The defendant
testified that he acknowledged to Officer Ballard that “LA,” was his nickname,
which stood for “Ladies All the Time.” The defendant claimed that he drove
to Ms. Hunter’s apartment to return her car and was arrested by police. He
testified that he gave officers the alias Montea Wilson because he had a prior
record in his own name. The defendant contended that the statement that he
gave police on December 11 was false because he “wanted to give them
everything that they wanted at that particular time.” He maintained that they
wanted him to place himself at the scene so that he would be a good witness
and that he acquiesced in their request. The defendant denied any role in
planning the offenses.

        During cross-examination, the defendant claimed that he had falsely
testified at a suppression hearing that he was at Anita Hunter’s apartment at
the time of the offenses. He also acknowledged that he had lied during his
direct examination by testifying that his two prior robbery convictions were for
offenses occurring on the same date. The defendant admitted that his resume
indicates that he graduated from Crenshaw Senior High in California when he
actually failed to complete high school at Jackson Central Marion in Jackson,
Tennessee. He testified that he lied extensively in his first statement, at which
time he told police that he was in Mississippi at the time of the crimes and that
Webster and Bowles had confessed to the murder while riding around in a car.
The defendant contended that he gave a second statement admitting his own
involvement only because the police told him that his first statement was “no


                                      -10-
       good” because he was not at the scene. He explained that he lied at the
       suppression hearing only because he was concerned about being charged with
       perjury and wanted his testimony to be consistent with his second statement.

               Lieutenant Raymond H. Hopkins of the Memphis Police Department,
       who works with Crime Stoppers, testified that Crime Stoppers keeps records
       of all tips received and forwarded to investigators. Callers are given secret
       codes to ensure their anonymity, then asked to call back later. Lieutenant
       Hopkins identified tip number 016542 as having been telephoned in at 9:10
       a.m. on December 5, 1997. He stated that the tipster gave the names of two
       suspects in the Ace American Check Cashing incident, Javon and Pookie, and
       said that they had committed the crime in order to prove their loyalty to the
       Crips gang. Lieutenant Hopkins testified that the caller stated he had received
       his information from the suspects. In response to questioning by the state, he
       acknowledged that he had no knowledge whatsoever of the identity of the
       caller.

Montea Wilson, 2002 WL 925255, at *1-7 (footnote omitted).

        Following his conviction for felony murder, the petitioner filed a motion for new trial.
The record does not include a copy of the motion for new trial or a transcript from the
hearing. Based on the trial court’s findings, the defense did not assert that an instruction
should have been given for second degree murder. Apparently, the defense did argue that
a solicitation instruction was warranted. The petitioner appealed the denial of his motion for
new trial through a direct appeal; however, the issue of lesser-included offenses was not
raised. Id. at *1. This court affirmed the conviction. Id.

       The petitioner subsequently filed a petition for post-conviction relief alleging that trial
and appellate counsel were ineffective based on their failure to address or preserve whether
second degree murder should have been charged as a lesser-included offense of felony
murder. This petition was denied by the post-conviction court, and we reversed and
remanded for a hearing on the issues presented. See Montea Wilson v. State, No.
W2004-01881-CCA-R3-PC, 2005 WL 2333588, at *1 (Tenn. Crim. App., at Jackson, Sept.
21, 2005).

       Upon remand, the petitioner’s case languished. An evidentiary hearing was held in
April 2006 before the post-conviction judge, wherein trial counsel testified, but co-counsel
was unavailable due to health issues. At the April 2006 hearing, when questioned about why
he did not request an instruction for second degree murder, trial counsel responded:




                                              -11-
       There was a time back when second-degree murder was not a lesser-included
       of felony murder. We would generally ask for that on the premeditated count;
       but as for the felony murder count, if we didn’t, and the record doesn’t reflect
       we did, I don’t have any reason why we didn’t.

He could not recall if he had read the cases of State v. Burns, 6 S.W.3d 453 (Tenn. 1999),
State v. Laconia Bowers, No. E1999-00170-CCA-R3-CD, 2000 WL 15020 (Tenn. Crim.
App., at Knoxville, Jan. 11, 2000), or State v. Trusty, 919 S.W.2d 305 (Tenn. 1996), before
trial. He believed that he requested an instruction for the lesser-included offense of
facilitation. He stated that he would have requested an instruction for second degree murder
if he felt it was warranted.

       Trial counsel said he was assisted by co-counsel in representing the petitioner and
worked on the case for “[m]any months–probably years.” Their primary theory of defense
was that the petitioner was not present when the robbery occurred. Trial counsel stated, “The
defense was much more Mr. Wilson wasn’t responsible for anything, more than he was
responsible for something lesser.” He said the facilitation instruction was requested because
the petitioner might have aided the robbery. Trial counsel testified that co-counsel handled
the appeal; however, he consulted during the appellate process. He could not recall if he read
State v. Ely, 48 S.W.3d 710 (Tenn. 2001), before the appeal was filed.

         Following the hearing, the post-conviction judge took the case under advisement but
retired before issuing a ruling in the case. The case was then transferred to another judge,
who recused himself. Almost two years later, the case was transferred to the final post-
conviction judge. Given the lengthy period of time that had passed, the final post-conviction
judge provided the petitioner with the option of a new evidentiary hearing, which he
declined. The judge then reviewed the testimony of the April 2006 hearing, among other
things, before entering an order denying post-conviction relief regarding the ineffectiveness
of trial counsel and granting a delayed appeal on the issue of whether second degree murder
should have been charged as a lesser included offense of felony murder. The order stated:

       A review of the relevant transcripts indicate[s] that trial counsel was effective
       in their defense of the petitioner during the trial. The original post[-]
       conviction court found that the trial counsel did an effective job based on the
       law and this Court finds nothing in the proof or transcripts to counter that
       finding. The petitioner has failed to carry his burden of proof as to how his
       attorneys were ineffective during the course of trial. However, this Court finds
       that the issue of the lesser[-]included offense of Murder Second Degree should
       have been charged by the trial court. Although trial counsel was effective in
       the representation of the petitioner during the trial of the case and had no
       obligation to request the charge of Murder Second Degree as a lesser[-


                                             -12-
       ]included offense they should have preserved the right to have that issue
       reviewed on appeal by raising it during the Motion for a New Trial. The law
       at the time of the trial required the trial court to charge all lesser[-]included
       offenses and Murder Second Degree had been previously established by the
       Supreme Court to be a lesser[-]included offense of Felony Murder. Trial
       counsel can make a strategic decision not to request a specific lesser[-]
       included offense or to argue that point during closing argument and that
       decision should not be challenged as ineffective assistance of counsel.
       However, once the jury decided that the petitioner was guilty the trial counsel
       should have protected the petitioner’s right to litigate the trial court’s failure
       to properly instruct the jury on lesser[-]included offenses by raising the point
       during the Motion for a New Trial. In light of the overwhelming body of law
       which has since been decided[,] this Court is of the opinion that the omission
       by the trial court would appear to be plain error and trial counsel’s failure to
       protect that right on appeal was ineffective.

       The post-conviction court found that a delayed appeal was the proper remedy and
allowed the petitioner to file a motion for new trial. It stated, “This Court is not in a position
to determine if the omission by the trial court was plain error or was harmless, therefore this
court cannot determine if trial counsel’s actions were prejudicial to petitioner’s rights
requiring a new trial.” The post-conviction court directed that the motion for new trial
address whether second degree murder should have been charged as a lesser-included
offense. The petitioner filed a timely notice of appeal.

                                          ANALYSIS

        I. Ineffective Assistance of Counsel. The petitioner claims trial counsel were
ineffective based on their failure to request an instruction for second degree murder. He
argues that trial counsel should have asked for the instruction even though the trial court was
required to instruct the jury on the lesser-included offenses of felony murder. He further
contends that trial counsel were ineffective by failing to allege in the motion for new trial that
the trial court erred by not instructing the jury on second degree murder as a lesser-included
offense of felony murder. In response, the State cites to numerous decisions from this court
which conclude that counsel was under no duty to request the instruction. The State also
argues that trial counsel made a strategic decision not to ask for the instruction, thereby
negating any obligation to request the instruction. We agree with the Petitioner.

      Post-conviction relief is only warranted when a petitioner establishes that his or her
conviction is void or voidable because of an abridgement of a constitutional right. T.C.A.
§ 40-30-103 (2006). The Tennessee Supreme Court has held:



                                               -13-
       A post-conviction court’s findings of fact are conclusive on appeal unless the
       evidence preponderates otherwise. When reviewing factual issues, the
       appellate court will not re-weigh or re-evaluate the evidence; moreover, factual
       questions involving the credibility of witnesses or the weight of their testimony
       are matters for the trial court to resolve. The appellate court’s review of a
       legal issue, or of a mixed question of law or fact such as a claim of ineffective
       assistance of counsel, is de novo with no presumption of correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal quotation and citations
omitted). “The petitioner bears the burden of proving factual allegations in the petition for
post-conviction relief by clear and convincing evidence.” Id. (citing T.C.A. § 40-30-110(f);
Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006)). Evidence is considered clear and
convincing when there is no serious or substantial doubt about the accuracy of the
conclusions drawn from it. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)
(citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901, n.3 (Tenn. 1992)), perm. to appeal
denied (Tenn. Nov. 2, 1998).

       Vaughn further repeated well-settled principles applicable to claims of ineffective
assistance of counsel:

       The right of a person accused of a crime to representation by counsel is
       guaranteed by both the Sixth Amendment to the United States Constitution and
       article I, section 9, of the Tennessee Constitution. Both the United States
       Supreme Court and this Court have recognized that this right to representation
       encompasses the right to reasonably effective assistance, that is, within the
       range of competence demanded of attorneys in criminal cases.

Vaughn, 202 S.W.3d at 116 (internal quotations and citations omitted).

       In order to prevail on an ineffective assistance of counsel claim, the petitioner must
establish that (1) his lawyer’s performance was deficient and (2) the deficient performance
prejudiced the defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[A] failure to
prove either deficiency or prejudice provides a sufficient basis to deny relief on the
ineffective assistance claim. Indeed, a court need not address the components in any
particular order or even address both if the [petitioner] makes an insufficient showing of one
component.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S.
at 697, 104 S. Ct. at 2069).

      A petitioner successfully demonstrates deficient performance when the clear and
convincing evidence proves that his attorney’s conduct fell below “an objective standard of


                                             -14-
reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland, 466 U.S.
at 688, 104 S. Ct. at 2065; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is
demonstrated once the petitioner establishes “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 370.
“‘A reasonable probability is a probability sufficient to undermine confidence in the
outcome.”’ Id. (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068).

       The post-conviction court found that trial counsel were effective in representing the
petitioner during trial. It reasoned that trial counsel were under no obligation to ask for the
instruction because the trial court was responsible for instructing the jury on the lesser-
included offenses of felony murder. Before resolving this issue, some discussion of the law
governing lesser-included offenses at the time of the petitioner’s trial is necessary. The
petitioner was tried in February of 2000, and, at that time, the trial court was required “to
charge the jury as to all of the law of each offense included in the indictment, without any
request on the part of the defendant to do so.” Wiley v. State, 183 S.W.3d 317, 328 (Tenn.
2006); T.C.A. § 40-18-110(a) (2000).2 The Tennessee Supreme Court discussed the effect
of not requesting an instruction for a lesser-included offense in State v. Page, 184 S.W.3d
223 (Tenn. 2006). The Court stated:

               Under this prior version of section 40-18-110, a defendant was not
       required to request a lesser-included instruction to assign as error the trial
       court’s failure to give such instruction. Therefore, all a defendant need do to
       assign error to a trial court’s failure to instruct on a lesser-included offense was
       to raise that issue on appeal.

Id. at 229. In State v. Burns, 6 S.W.3d 453 (Tenn. 1999), the Court defined the applicable
standard for determining whether an offense constituted a lesser-included offense. Id. at 466-



       2
         Section 40-18-110(a) was subsequently amended. The amendments became effective on January
1, 2002. It now reads:

       When requested by a party in writing prior to the trial judge’s instructions to the jury in a
       criminal case, the trial judge shall instruct the jury as to the law of each offense specifically
       identified in the request that is a lesser included offense of the offense charged in the
       indictment or presentment. However, the trial judge shall not instruct the jury as to any
       lesser included offense unless the judge determines that the record contains any evidence
       which reasonable minds could accept as to the lesser included offense. In making this
       determination, the trial judge shall view the evidence liberally in the light most favorable
       to the existence of the lesser included offense without making any judgment on the
       credibility of evidence. The trial judge shall also determine whether the evidence, viewed
       in this light, is legally sufficient to support a conviction for the lesser included offense.


                                                     -15-
67. It also set forth a two-step analysis for determining if a lesser-included offense
instruction should be given in a particular case. It stated:

        First, the trial court must determine whether any evidence exists that
        reasonable minds could accept as to the lesser-included offense. In making
        this determination, the trial court must view the evidence liberally in the light
        most favorable to the existence of the lesser-included offense without making
        any judgments on the credibility of such evidence. Second, the trial court must
        determine if the evidence, viewed in this light, is legally sufficient to support
        a conviction for the lesser-included offense.

Id. at 469.

        This court applied the Burns standard in the context of felony murder in State v.
Laconia Lamar Bowers,3 No. E1999-00170-CCA-R3-CD, 2000 WL 15020, at *4 (Tenn.
Crim. App., at Knoxville, Jan. 11, 2000), aff’d, State v. Ely, 48 S.W.3d 710 (Tenn. 2001).
Laconia Lamar Bowers was decided approximately one month before the petitioner’s trial.
It held that second degree murder was a lesser-included offense of felony murder. The court
did not conduct the two-part Burns analysis to determine whether an instruction for second
degree murder was warranted. It did, however, conclude that the trial court did not err by
instructing the jury on second degree murder. Id. This decision was affirmed by the
Tennessee Supreme Court in Ely, which was decided after the petitioner’s trial. 48 S.W.3d
at 722-24. The Court in Ely performed the two-step analysis in Burns and determined the
evidence justified an instruction on second degree murder. Id.

        In the present case, the post-conviction court correctly stated that second degree
murder was a lesser-included offense of felony murder. Burns required the post-conviction
court to first determine whether the offense was a lesser-included offense, and then conduct
a two-part analysis to decide if the evidence justified an instruction on the lesser-included
offense. This two-part analysis was absent from the post-conviction court’s order. Despite
this omission, the State concedes that an instruction for second degree murder was warranted;
however, it argues that trial counsel had no obligation to request the instruction. In support
of its argument, the State refers to the case of Ronald Donnell Moore v. State, in which this
court stated:

        Because the trial court had a mandatory duty to instruct the jury regardless of
        a request to do so, this court has consistently held that trial counsel was not


        3
          This issue is now specifically addressed by section 40-18-110(g)(1), which states: “Second degree
murder is a lesser included offense of first degree murder as defined in § 39-13-202.” This section became
effective on January 1, 2002.

                                                   -16-
       ineffective for failing to request an instruction on a particular lesser[-]included
       offense.

No. W2008-00034-CCA-R3-PC, 2009 WL 1424186, at *9 (Tenn. Crim. App., at Jackson,
May 20, 2009) (citations omitted), perm. to appeal denied (Tenn. Oct. 19, 2009). We
acknowledge, as did Ronald Donald Moore, that this court has repeatedly held the same. See
Ellis Junior Burnett v. State, No. M2007-00572-CCA-R3-PC, 2008 WL 555711, at *11
(Tenn. Crim. App., at Nashville, Feb. 29, 2008), perm. to appeal denied (Tenn. Aug. 25,
2008); Larry Johnson v. State, No. W2006-00345-CCA-R3-PC, 2007 WL 2120184, at *10
(Tenn. Crim. App., at Jackson, July 24, 2007); Jerome Sawyer v. State, No.
W2005-01813-CCA-R3-PC, 2007 WL 778828, at *20 (Tenn. Crim. App., at Jackson, Mar.
15, 2007), perm. to appeal denied (Tenn. Aug. 13, 2007); Chivous Robinson v. State, No.
E2005-01036-CCA-R3-PC, 2006 WL 1381511, at *6 (Tenn. Crim. App., at Knoxville, May,
19, 2006), perm. to appeal denied (Tenn. Oct. 2, 2006); Jeffery Lee Miller v. State, No.
M2003-02841-CCA-R3-PC, 2005 WL 901130, at *5 (Tenn. Crim. App., at Nashville, Apr.
19, 2005); Terrance L. Turner v. State, No. M2002-02429-CCA-R3-PC, 2004 WL 587636,
at *5 (Tenn. Crim. App., at Nashville, Mar. 25, 2004).

        The petitioner however relies primarily on the Tennessee Supreme Court’s decision
in Wiley, 183 S.W.3d at 330. The petitioner in Wiley was also convicted of felony murder.
Id. at 320. He claimed counsel was ineffective based on his failure to request an instruction
for second degree murder and raise the issue in the motion for new trial. Id. at 330. The
Court first determined that the trial court was obligated to instruct the jury on second degree
murder. Id. In making this determination, the Court relied on its decision in State v. Trusty,
919 S.W.2d 305, 310 (Tenn. 1996). The petitioner’s case was tried before the Court’s
decision in Burns. Id. at 326. At the post-conviction hearing, counsel could not recall why
second degree murder was not charged as a lesser-included offense. Id. at 330. The Court
concluded that counsel was ineffective and granted the petitioner a new trial. Id. It stated:

              We conclude that counsel was deficient in failing to request an
       instruction on second degree murder and in failing to preserve the issue for
       appeal. At the time of the petitioner’s offense, felony murder required a
       “reckless” killing in the commission or the attempted commission of an
       enumerated felony, Tenn. Code Ann. § 39-13-202(a)(2), and second degree
       murder required a “knowing killing of another.” Tenn. Code Ann. §
       39-13-210. Moreover, at the time of the petitioner’s trial, the trial court was
       required to instruct the jury on second degree murder as a lesser grade offense
       under this Court’s decision in Trusty. 919 S.W.2d at 310. Although the trial
       court was required to instruct the jury on this lesser offense even without a
       request by counsel, see Tenn. Code Ann. § 40-18-110, trial counsel failed to



                                              -17-
       object, failed to raise the error in a motion for new trial, and failed to take any
       other step toward preserving the issue for appeal.

              We also conclude that counsel’s deficiency was prejudicial. As the trial
       court specifically found in the post-conviction proceeding, the evidence at trial
       supported an instruction on second degree murder: “Given the facts in this
       case, including the petitioner’s statement to the police, and the scene of the
       crime, a reasonable juror might conclude that the petitioner was guilty of
       second degree murder.” See State v. Allen, 69 S.W.3d 181, 189 (Tenn. 2002).
       As a result, the failure to instruct on second degree murder as required at the
       time under Trusty would have been reversible error on direct appeal if the
       issue had been preserved.

               In addition, had the issue been preserved and raised on appeal, the
       petitioner’s direct appeal would have been in the appellate “pipeline” for
       review under Burns. As discussed above, second degree murder is a
       lesser-included offense of the present version of felony murder under Burns.
       See Ely, 48 S.W.3d at 720. Moreover, second degree murder was also a
       lesser-included offense of the former version of felony murder because the
       mental state for felony murder was the “intent” to commit the underlying
       felony (resulting in a reckless killing), and the mental state for second degree
       murder was a “knowing” killing. As a result, second degree murder had a
       “different mental state indicating a lesser kind of culpability” than did the
       former version of felony murder. See Burns, 6 S.W.3d at 461; see also Ely, 48
       S.W.3d at 720-21. Since the evidence supported an instruction on second
       degree murder, the failure to instruct on second degree murder would have
       been reversible error under Burns.

Id. at 330-31.

       In the present case, the petitioner also points to the concurring opinion written by
Presiding Judge Joseph M. Tipton in Ellis Junior Burnett v. State, 2008 WL 555711, at *10-
11 (Tipton, P.J., concurring). Presiding Judge Tipton stated:

       [Z]ealous advocacy required of an attorney in defending a criminal case is not
       lessened by the duties imposed upon other participants in the criminal justice
       system. In fact, counsel’s task will involve attempting to ensure that the trial
       judge and the prosecution comply with the duties imposed upon them by
       statute, rule, or case law. Ensuring that appropriate instructions regarding
       lesser[-]included offenses are given is a basic duty of counsel. I am bolstered
       in my belief by our supreme court’s holding in Wiley v. State, 183 S.W.3d 317


                                              -18-
       (Tenn. 2005), involving post-conviction relief from a felony murder
       conviction. Although noting that the trial court was obligated to instruct the
       jury regarding proven lesser[-]included offenses, the court held that “counsel
       was deficient in failing to request an instruction on second degree murder and
       in failing to preserve the issue for appeal.” Id. at 331.

Id. at *11 (Tipton, P.J., concurring).

       Given the facts and circumstances of this case, we disagree with the post-conviction
court and conclude that the petitioner was deprived the effective assistance of counsel at trial.
Trial counsel, though not obligated to request the instruction, was deficient in failing to
request an instruction on second degree murder and in failing to preserve the issue for appeal.
Our decision is bolstered by State v. Brown, 311 S.W.3d 422, 434 (Tenn. 2010), wherein the
Tennessee Supreme Court considered the effect of a jury instruction that omitted the lesser-
included offenses of felony murder. The Court categorized the error as a non-structural
constitutional error, meaning the error required reversal unless the State proved beyond a
reasonable doubt that it was harmless. Id. The Court found that the error was not shown to
be harmless, and therefore it granted the defendant a new trial. Id. at 435. Accordingly, we
will review the evidence to determine if the error was harmful to the petitioner.

        Based on the evidence adduced at trial, we cannot conclude this error was harmless.
Here, there was no dispute that an attempted robbery occurred which resulted in the death
of the victim, Cecil Goodman. The record also showed that the petitioner gave the other
individuals involved in the offense a gun on the day of the murder. The petitioner also
provided a detailed statement in which he admitted that he knew the others involved intended
to rob the check cashing store. One of his co-defendants testified that the petitioner planned
the robbery, arranged everyone’s participation, and discussed a four way split of the
proceeds. The attempted robbery ensued once the petitioner gave the code word “A-okay”.
The victim was fatally shot while the petitioner was acting as a look-out for the others. A
co-defendant who witnessed the shooting stated that the victim panicked and threw a box at
another co-defendant. The victim was shot after wrestling with a co-defendant. The
petitioner argues that these facts support a charge of second degree murder under a theory
of criminal responsibility just as much as a charge of felony murder. Given this proof, we
are constrained to agree. Even though the evidence is clearly sufficient to support a verdict
of felony murder, his conduct also showed that he was criminally responsible for second
degree murder. See, e.g., Quinton Sanders v. State, No. W2001-01927-CCA-R3-CD, 2004
WL 221217, at *3 (Tenn. Crim. App., at Jackson, Jan. 30, 2004), perm. to appeal denied
(Tenn. June 14, 2004). The jury in this case was deprived of the option of considering
whether this offense applied, which impaired their truth-ascertainment function.
Consequently, we cannot say the failure to instruct the jury on the lesser-included offense of
second degree murder was harmless beyond a reasonable doubt. Therefore, we reverse the


                                              -19-
petitioner’s conviction for first degree felony murder and remand this case to the Shelby
County Criminal Court for a new trial on that charge wherein the jury is instructed on
lesser-included offenses in accordance with this opinion.

        Notwithstanding our holding above, we will address the State’s argument that trial
counsel provided effective assistance because they made a strategic decision not to request
the instruction. We believe this argument is misplaced. The Tennessee Supreme Court has
stated:

       In Bolden, [979 S.W.2d 587 (Tenn. 1998)] we emphasized the mandatory
       nature of the duty to instruct on lesser-included offenses and that “neither the
       prosecution nor the defense should be allowed, based on their trial strategy, to
       preclude the jury from considering guilt of a lesser offense included in the
       crime charged.” Id. at 593 (quoting People v. Barton, 12 Cal. 4th 186, 47 Cal.
       Rptr. 2d 569, 906 P.2d 531, 536 (1995)).

Brown, 311 S.W.3d at 431. We also question the benefit of denying the jury the opportunity
to consider the lesser-included offense in this case. See Bolden, 979 S.W.2d at 593 (“To
permit this would force the jury to make an ‘all or nothing’ choice between conviction of the
crime charged or complete acquittal, thereby denying the jury the opportunity to decide
whether the defendant is guilty of a lesser[-]included offense established by the evidence.”)
(quoting Barton, 906 P.2d at 536); see also Chivous Robinson, 2006 WL 1381511, at *5 n.
3 (questioning “the wisdom of gambling upon an all-or-nothing approach”). The transcript
from the post-conviction hearing shows that trial counsel may have made strategic decision
not to ask for the instruction; however, this does not relieve counsel’s obligation to preserve
the issue in a motion for new trial for appellate review.

        II. Delayed Appeal. Our previous decision regarding trial counsel’s ineffective
assistance renders this issue moot. However, in the event of further appellate review, we will
address it in detail. The petitioner argues the post-conviction court should have granted a
new trial rather than a delayed appeal. He maintains that a new trial was the proper remedy
because trial counsel did not request an instruction for second degree murder or preserve the
issue for appeal in the motion for new trial. The petitioner also contends that appellate
counsel should have raised the issue on direct appeal as plain error. The State agrees that a
delayed appeal should not have been granted in this case. It reasons, however, that the post-
conviction court failed to consider whether the petitioner was prejudiced by appellate
counsel’s deficient performance. For the reasons set forth below, we agree with both parties
and remand to the post-conviction court to determine whether the petitioner was prejudiced
by counsel’s failure to preserve and address on direct appeal second degree murder as a
lesser-included offense of felony murder.



                                             -20-
       Tennessee Code Annotated section 40-30-213(a) of the Post-Conviction Procedure
Act provides that a post-conviction court may grant a delayed appeal after finding that the
defendant was unconstitutionally denied an opportunity to appeal his original conviction.
T.C.A. § 40-30-213(a)(1). Supreme Court Rule 28, § 9 governs the procedure to be applied
and allows either a trial court or the Court of Criminal Appeals to grant a delayed appeal as
post-conviction relief where the petitioner, through no fault of his own, was denied
second-tier review following his direct appeal.

       Specifically, Tennessee Code Annotated section 40-30-113 states:

       (a) When the trial judge conducting a hearing pursuant to this part finds that
       the petitioner was denied the right to an appeal from the original conviction in
       violation of the Constitution of the United States or the Constitution of
       Tennessee and that there is an adequate record of the original trial proceeding
       available for a review, the judge can:

       (1) If a transcript was filed, grant a delayed appeal;

       (2) If, in the original proceedings, a motion for a new trial was filed and
       overruled but no transcript was filed, authorize the filing of the transcript in
       the convicting court; or

       (3) If no motion for a new trial was filed in the original proceeding, authorize
       a motion to be made before the original trial court within thirty (30) days. The
       motion shall be disposed of by the original trial court as if the motion had been
       filed under authority of Rule 59 of the Rules of Civil Procedure.

In addition, section 40-30-111(a) states:

       If the court finds that there was such a denial or infringement of the rights of
       the prisoner as to render the judgment void or voidable, including a finding
       that trial counsel was ineffective on direct appeal, the court shall vacate and
       set aside the judgment or order a delayed appeal as provided in this part and
       shall enter an appropriate order and any supplementary orders that may be
       necessary and proper. . . .

      Regarding this issue, the post-conviction court ordered a delayed appeal because it
found “the issue of the lesser included offense of Murder Second Degree should have been
charged by the trial court.” It further stated, “This Court is not in a position to determine if
the omission by the trial court was plain error or was harmless, therefore this court cannot
determine if counsel’s actions were prejudicial to petitioner’s rights requiring a new trial.”


                                              -21-
As previously stated, we disagree with the post-conviction court’s remedy of a delayed
appeal in this case. We first note that the petitioner has not been denied the right to an appeal
from his original conviction. The record shows that a motion for new trial was filed in this
case and that the petitioner received a direct appeal as well as second-tier review. Moreover,
we infer from the post-conviction court’s comments that it believed it was without
jurisdiction to make a determination of prejudice.4 This court has previously held that
“before post-conviction relief in the form of a delayed appeal or any other type of relief can
be granted to a petitioner, he must show not only that his counsel performed deficiently, but
also that the deficiency resulted in prejudice to him.” Terry Smithson v. State, No. 88-203-
III, 1989 WL 28311, at *3, (Tenn. Crim. App., at Nashville, Mar. 28, 1989) (citing Strickland
v. Washington, 466 U.S. 668, 700, 104 S. Ct. 2052, 2071 (1984)). In Smithson, we
concluded that it was improper for the post-conviction court to grant a delayed appeal absent
a finding and determination that appellate counsel’s errors resulted in prejudice to the
petitioner. Id. at *3. Because there was no such finding in this case, we would have
remanded this matter to the post-conviction court for the purpose of determining whether the
petitioner was prejudiced by appellate counsel’s failure to address the lesser included
offenses on direct appeal.

       Based on the foregoing, the judgment of the post-conviction court is reversed. We
remand this matter to the Shelby County Criminal Court for a new trial on the offense of first
degree felony murder.




                                                            ______________________________
                                                            CAMILLE R. McMULLEN, JUDGE




        4
           We acknowledge that, in the petitioner’s original post-conviction hearing, the first post-conviction
judge maintained that these issues were “previously determined” because, despite counsel’s failure to raise
them on direct appeal, this Court could have addressed them for plain error and declined to do so. However,
in the first post-conviction appeal, we stressed, “This Court has never ruled on the merits of the petitioner’s
claims that lesser-included offense instructions should have been given at trial. Therefore, the
post-conviction court’s ruling that these issues have been ‘previously determined’ is erroneous.” Montea
Wilson, 2005 WL 2333588, at *8.

                                                     -22-
