        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs July 19, 2016

          EDWARD BRUCE COLEMAN v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                   No. 2008-D-3865 Monte D. Watkins, Judge


                 No. M2015-01747-CCA-R3-PC – Filed July 25, 2016


The petitioner, Edward Bruce Coleman, appeals the denial of post-conviction relief from
his 2010 Davidson County Criminal Court jury conviction of aggravated assault, for
which he received a sentence of 12 years. In this appeal, the petitioner contends that the
order denying post-conviction relief was inadequate and that he was denied the effective
assistance of counsel. Discerning no error, we affirm.

            Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and TIMOTHY L. EASTER, JJ., joined.

Manuel B. Russ, Nashville, Tennessee (on appeal); and Jamie E. Machamer, Nashville,
Tennessee (at hearing), for the appellant, Edward Bruce Coleman.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Victor S. Johnson III, District Attorney General; and Roger Moore, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

              A Davidson County Criminal Court jury convicted the petitioner of
aggravated assault, and the trial court imposed a 12-year sentence. Although the
defendant initially filed a notice of appeal, he later moved this court to voluntarily
dismiss his appeal, which motion was granted. See State v. Edward Bruce Coleman, No.
M2010-02055-CCA-R3-CD (Tenn. Crim. App., Nashville, Aug. 5, 2011) (order).

              On March 19, 2012, the petitioner filed, pro se, a timely petition for post-
conviction relief, alleging, inter alia, that he was deprived of the effective assistance of
counsel. Following the appointment of counsel and the amendment of the petition, the
post-conviction court conducted an evidentiary hearing on June 10, 2013.

               At the evidentiary hearing, the petitioner testified that, prior to the
aggravated assault conviction at issue, he had been convicted of five prior felonies,
including three convictions for armed robbery and two for aggravated assault. The
petitioner stated that trial counsel never conveyed any plea offers to him and that trial
counsel’s associate was “the first person that told [him] the State was offering [him]
seven years.” The petitioner rejected the seven years outright, believing that his single
charge of aggravated assault carried a possible sentence of only “three to five years[, so
w]hy would [he] take seven.” The petitioner explained that he had been operating under
the erroneous impression that his prior five felonies fell “under the twenty-four hour
crime spree” RULE and that he was still considered a Range I offender. According to the
petitioner, trial counsel never advised him of his appropriate sentencing range. The
petitioner testified that if trial counsel had advised him that he would be considered a
Range III, persistent offender, he would have accepted the offer of seven years and
pleaded guilty.

               Trial counsel testified that the petitioner was correct in his assertion that her
associate counsel had initially conveyed the seven-year plea offer but stated that her notes
reflected that she had met with the petitioner one month later and engaged in a lengthy
discussion “about his misunderstanding of the fact that [his prior convictions] made him
range one.” Her notes also referenced the plea offer. Trial counsel met with the
petitioner on two more occasions and continued discussing the petitioner’s appropriate
sentencing range. She explained to him that, although his prior crimes had occurred
within 24 hours of one another, the law “made an exception to the twenty-four hour
merger rule for crimes of violence.” Trial counsel stated that the petitioner “was always
upset by the fact that the offer was bad,” and trial counsel agreed that it “was not a great
offer.”

              With respect to the decision to go to trial, trial counsel testified that the
petitioner made the decision after discussing it with her. The petitioner was reluctant to
accept the offer of seven years because he was “both in custody and out of custody during
the pendency of this case,” and “the worst [sentence] he was going to get was fifteen
[years].” Trial counsel agreed that the petitioner ultimately received the minimum
sentence for his range.

               On cross-examination, trial counsel insisted that her plea discussions with
the petitioner always centered around the fact that the petitioner “would be sentenced as a
range three offender.”

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               With this evidence, the post-conviction court denied relief, finding, in
pertinent part, as follows:

                      At the evidentiary hearing, trial counsel testified that
              she met with the [petitioner] on numerous occasions and
              advised him of the evidence against him. Further, the
              [p]etitioner was advised of [the] plea offer, the likelihood of
              conviction, the range of punishment as well as the
              implications of his previous criminal history.

                     Therefore, the [c]ourt finds that [the p]etitioner has
              failed to demonstrate by clear and convincing evidence
              ineffective assistance of counsel in violation of a
              constitutional right to render his conviction and sentence void
              or voidable under the Post Conviction Relief Act. The [c]ourt
              does not find the [p]etitioner’s testimony to be credible.
              Accordingly, the [c]ourt finds that [the p]etitioner has failed
              to show that he was prejudice[d] by counsel’s allegedly
              deficient conduct.

              In this appeal, the petitioner reiterates his claim of ineffective assistance of
counsel, claiming that trial counsel performed deficiently by failing to inform him of his
sentencing range and accompanying potential punishment. In addition, the petitioner
contends that the post-conviction court’s order denying relief does not comply with the
Post-Conviction Procedure Act (“the Act”). The State contends that the post-conviction
court’s order was indeed appropriate and that the court did not err by denying relief.

              We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “when the conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. A post-
conviction petitioner bears the burden of proving his or her factual allegations by clear
and convincing evidence. Id. § 40-30-110(f). On appeal, the appellate court accords to
the post-conviction court’s findings of fact the weight of a jury verdict, and these findings
are conclusive on appeal unless the evidence preponderates against them. Henley v.
State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn.
Crim. App. 1997). By contrast, the post-conviction court’s conclusions of law receive no
deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453
(Tenn. 2001).

              Before a petitioner will be granted post-conviction relief based upon a
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claim of ineffective assistance of counsel, the record must affirmatively establish, via
facts clearly and convincingly established by the petitioner, that “the advice given, or the
services rendered by the attorney, are [not] within the range of competence demanded of
attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and
that counsel’s deficient performance “actually had an adverse effect on the defense,”
Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, 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.” Strickland, 466 U.S. at
694. Should the petitioner fail to establish either deficient performance or prejudice, he is
not entitled to relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).
Indeed, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697.

               When considering a claim of ineffective assistance of counsel, a reviewing
court “begins with the strong presumption that counsel provided adequate assistance and
used reasonable professional judgment to make all significant decisions,” Kendrick v.
State, 454 S.W.3d 450, 458 (Tenn. 2015) (citing Strickland, 466 U.S. at 689), and “[t]he
petitioner bears the burden of overcoming this presumption,” id. (citations omitted). We
will not grant the petitioner the benefit of hindsight, second-guess a reasonably based trial
strategy, or provide relief on the basis of a sound, but unsuccessful, tactical decision
made during the course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn.
Crim. App. 1994). Such deference to the tactical decisions of counsel, however, applies
only if the choices are made after adequate preparation for the case. Cooper v. State, 847
S.W.2d 521, 528 (Tenn. Crim. App. 1992).

              A claim of ineffective assistance of counsel is a mixed question of law and
fact. Kendrick, 454 S.W.3d at 457; Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010);
State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453,
461 (Tenn. 1999). When reviewing the application of law to the post-conviction court’s
factual findings, our review is de novo, and the post-conviction court’s conclusions of
law are given no presumption of correctness. Kendrick, 454 S.W.3d at 457; Fields, 40
S.W.3d at 457-58; see also State v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

               In our view, the record fully supports the ruling of the post-conviction
court. First, with respect to the adequacy of the post-conviction court’s order denying
relief, the Act requires that the final order must “set forth . . . all grounds presented, and
shall state the findings of fact and conclusions of law with regard to each ground.”
T.C.A. § 40-30-111(b). The post-conviction court clearly complied with these
requirements, having identified the petitioner’s claim for relief, summarized the scant
proof presented, made specific credibility findings, and concluded that the petitioner
                                             -4-
failed to prove deficient performance or prejudice. With respect to the petitioner’s
argument that trial counsel failed to inform him of his sentencing range and possible
punishment, the evidence does not preponderate against the post-conviction court’s
finding that trial counsel had advised the petitioner of the “plea offer, the likelihood of
conviction, the range of punishment as well as the implications of his previous criminal
history.” Moreover, the post-conviction court specifically found the petitioner’s
testimony lacked credibility, and we must defer to that court’s resolution of credibility
issues. See State v. Massey, 929 S.W.2d 399, 403 (Tenn. Crim. App. 1996); Taylor v.
State, 875 S.W.2d 684, 686 (Tenn. Crim. App. 1993). As such, we hold the petitioner
has failed to prove by clear and convincing evidence that trial counsel’s representation
was deficient or prejudicial.

               The petitioner failed to establish that he was denied the effective assistance
of counsel at trial. Accordingly, the judgment of the post-conviction court is affirmed.

                                                  _________________________________
                                                  JAMES CURWOOD WITT, JR., JUDGE




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